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A  TREATISE 


ON 


ATTACHMENT  AND  GARNISHMENT 


By  Rufus  Waples,  LL.D. 

AUTHOR  OF  A  TREATISE   ON  PROCEEDDs-GS  IN  REM,   A  TREATISE  ON 

Homestead  and  Exemption,  etc. 


SECOND  EDITlOJSr 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1895 


T 

Copyright,  1895, 

BY 

RUFUS  WAPLES. 


STATE  JOURNAL  PRINTING  COMPANY, 

Printers  and  Stebeotypers, 

madison,  m'is. 


5? 


PREFACE. 


The  material  accumulated  since  the  first  edition  was  pub- 
lished —  ten  years  ago  —  is  incorporated  into  this,  yet  by  con- 
densing the  old  matter,  interweaving  the  new  with  it  and 
re-arranging  the  chapters,  the  whole  of  the  text  is  confined 
to  seven  hundred  pages  —  only  about  a  hundred  more  than 
the  first  edition  contained.  The  distinguishing  traits  of  the 
treatise  are  retained,  though  it  has  been  largely  rewritten 
and  carefully  revised.  It  could  have  been  extended  to  two 
volumes  with  less  tedious  labor  —  twenty  months  having 
been  devoted  to  the  revision,  to  the  exclusion  of  other  em- 
ployment. 

The  decisions  have  been  closely  followed,  and  the  law 
presented  as  it  has  been  decided.  The  statutes  have  been 
cited  with  the  cases  construing  them,  when  necessary  and 
practicable.  The  aim  of  the  writer  has  been  to  make  this 
edition  a  better  tool  for  professional  use  in  every  respect. 

To  aid  in  effecting  this,  he  has  improved  on  the  former 
one  by  dividing  the  text  into  sections,  with  catch- words  at- 
tached in  most  instances;  and  the  index  now  refers  to  the 
sections.  It  is  more  minute  and  thorough  than  the  first 
one  was,  and  is  briefly  itemized  so  that  the  subject  sought 
may  readily  strike  the  eye.  In  a  word,  it  may  be  said  that 
this  treatise  as  now  revised  not  only  contains  the  law  of 
Attachment  and  Garnishment  up  to  the  date  of  going  to 
press,  but  that  any  point  can  be  easily  found. 

The  table  of  cases  is  twice  as  large  as  the  former  one. 
Fewer  authorities  would  have  sufficed  to  support  the  prop- 


740143 


IV  PREFACE. 

ositions,  but  it  seemed  advisable  to  cite  many  and  leave 
the  practitioner  to  make  his  own  selection  of  such  as  are 
adapted  to  his  state  and  most  available  for  his  purpose  in 
practice. 

With  these  prefatory  words,  the  writer   trusts  this  edi- 
tion to  the  profession  as  the  last  he  means  to  offer  for  ten 

years  to  come. 

EuFus  Waples. 
Ann  Arbor,  Mich.,  1895. 


TABLE  OF  CONTENTS. 


Sections. 

CHAPTER  I.     THE  REMEDY  OUTLINED 1 

I.  Definitiox  and  Distinctions 1-4 

II.  The  Suit  Against  Property 5-11 

III.  The  Right  to  Attach 12-18 

IV.  Pre-existing  Liens 19-23 

V.  Construction 23-25 

CHAPTER  IL     STATUTORY  GROUNDS 26 

L  The  Usual  Conditions 26-31 

II.  Non-residency 32-43 

III.  Absence  and  Non-residence 44-49 

IV.  Debtors  Absconding  or  Concealing  Themselves  to 

Avoid  Process 50-56 

V.  Fraudulent  Disposition  of  Property  to  Avoid  Cred- 
itors    57-72 

VI.  Exceptional  Grounds 73-76 

CHAPTER  III.     THE   PETITION  AND  CAUSE  OF  ACTION  77 

L   AVERaiENTS  AND  PRAYER 77-83 

II.  Amendments 84-87 

III,  Amendments  Affecting  the  Defendant      ....  88-91 

IV.  When  the  Petition  Should  be  Filed 92-93 

.  V.  AcTiON^oN  Breach  of  Contract 94-97 

VL  Debt  Not  Due  but  Certain 98-100 

VIL  Exceptional  Causes  of  Action 101-102 

VIIL  Attachments  Aided  by  Equity 103-104 

CHAPTER  IV.     THE  ATTACHMENT  AFFIDAVIT       ...  105 

I.  The  Affiant  .     .     • 105-107 

II.  How  the  Affidavit  is  Executed 108-110 

HI.  Form  and  Essentials 111-114 

IV.  Stating  the  Debt 115-121 

V.  Laying  the  Grounds 122-126 

VI.  Information  and  Belief 127-131 

VII.  Certainty 132-134 

VIIL  Alternation 135-137 

IX.  Amendments 138-152 

X.  As  Evidence 153-156 

XI.  The  AFFIDA^^T  Jurisdictional 157-160 


VI  TABLE    OF   CONTENTS. 

Sections, 

CHAPTER  V.     THE  ATTACHMENT  BOND 161 

I.  Protection  to  the  Defendant 161-1(56 

II.  Necessary  to  the  Writ 167-160 

III.  Execution  of  the  Bond 170-174 

IV.  The  Amount 175-177 

V.  Conditions 178-181 

VI.  The  Principal 182-185 

VII.  The  Surety 186-193 

VIII.  Amendment 194-19& 


CHAPTER  VI.    PROCESS 197 

I.  The  Summons 197-20S 

II.  The  Writ 204-207 

III.  Issuance  of  the  Writ 208-211 

IV.  Requisites  of  the  Writ 212-210 

V.  Amendment 220-22(V 

VI.  The  Writ  as  to  Property 227-231 

VII.  The  Writ  Protecting  the  Officer 232-23(> 

VIII.  Indemnity  Bond 237-245 


CHAPTER  VII.     LIABILITY  TO  ATTACHMENT    ....  24& 

I.  Debtor's  Property  Generally 246-248 

II.  Partnership  Property 249-254 

III.  Property  Held  by  Third  Persons 255-258 

IV.  Property  in  Custodia  Legis 259-261 

V.  Property  Assigned 262-266' 

VL  Property  Consigned 267-271 

VIL  Choses  in  Action 272-275 


CHAPTER  VIIL     ATTACHING 27a 

L  In  General 276,277 

II.  Real  Estate,  how  Attached 278-282 

III.  Personalty,  how  Attached 283-291 

IV.  Time  of  Seizing 292-295 

V.  The  Officer's  Duties  and  Liabilities 296-303 

VL  Wrongful  Levy 304-311 

\ 

CHAPTER  IX.    THE  RETURN   AFTER  DIRECT  ATTACH- 
MENT      812 

I.  Stating  the  Execution  of  the  Writ 312-31T 

IL  Description  of  Attached  Property 318-321 

III.  Requisites  op  the  Return 322-331 

IV.  Amendments 332-338 

V.  Return  "Not  Found"  —  Order  of  Publication  .     .  339-341 

VI.  Publication  Notice 343-355' 


TABLE    OF    CONTEXTS. 


Vll 


CHAPTER  X.     LIABILITY  TO  GARNISHMENT 
I.  Property  in  the  Garnishee's  Hands 
II.  Credits  Due  the  Defendant     .... 

III.  Funds  Held  in  Trust  or  on  Deposit,  etg 

IV.  Conditional  Obligations 

V.  Partnership  Liability 

VI.  Promissory  Note 

VIL  Non-resident  Third  Possessors     .     .     . 


Sections. 
356 
3r,6-861 
362-364 
365-371 
372-376 
377-379 
380-386 
387-391 


CHAPTER  XL     LEGAL    CUSTODY    RELATIVE    TO    GAR 

NISHMENT 

I.  Officers  of  Court,  etc 

II.  Executors,  Administrators,  etc.    .     . 

III.  AssiCiNment,  Relative  to  Garnishment 

IV.  Illegal  and  Fraudulent  Assignment 


393 
393-402 
403-411 
412-422 
423^27 


CHAPTER  XII.     CORPORATIONS  AS  GARNISHEES  ...  428 

L  States 428-432 

II.  Counties,  etc. 433-438 

III.  Cities 439-443 

IV.  Private  Corporations  in  General 444 

V.  Banks 445-446 

VI.  Insurance  Co:tfPANiES 447-448 

VII.  Common  Carriers 449-454 

VIII.  Corporation  Servants 455-456 

IX  Corporation  Stock 457-458 

X.  Corporation  in  Foreign  State 459-463 

XL  Situs  of  Shares 464-468 

CHAPTER  XIIL    GARNISHMENT  PROCEEDINGS  BEFORE 

THE  DISCLOSURE 469 

I.  Nature  of  the  Proceeding 469-480 

,  II.  Requisites  for  the  Issue  of  the  Writ      ....  481-486 

IIL  Tme  Interrogatories 487-491 

IV.  Service  and  Return 492-498 

V.  Default 499-502 

CHAPTER  XIV.     THE  GARNISHEE'S  DISCLOSURE  ...  503 

I.  Exceptions  by  the  Garnishee 503-506 

IL  Requisites  of  the  Answer 507-513 

IIL  The  An'swer  Taken  as  True 514-519 

IV.  Defenses  Stated  in  the  Answer 520-529 

V.  Defense  for  Absent  Defendant 530-532 

VI.  Amended  Answer 533-538 

VIL  Traverse  of  the  Answer 539-551 

VIIL  The  Charging  Order 552-553 


Vlll  TABLE   OF    CONTENTS. 

Sections. 

CHAPTER  XV.     THE  PROPERTY  IN  COURT 554 

I.  Custody  by  the  Sheriff 554-561 

II.  Keepers  or  Receiptors 562-572 

III.  Defendant  Holding  under  the  Sheriff     ....  573-576 

IV.  Receivers 577-578 

V.  The  Garnishee's  Possession 579-587 

VI.  Sale  of  Perishable  Goods 588-592 

VII.  Loss  of  Custody 593-595 


CHAPTER  XVI.    JURISDICTION 596 

I.  Degrees  of  Authority  at  Different  Stages  of  the 

Suit 596-605 

II.  Jurisdiction  Over  the  Debtor 606-614 

III.  Jurisdiction  Over  the  Debtor's  Property      .     .    .  615-624 

IV.  Statutory  Requisites  Jurisdictional 625-634 

V.  The  Court's  Authority  Special 635-643 

VI.  Territorial  Limits 644-653 

VII.  Jurisdiction  in  Garnishment 654 


CHAPTER  XVIL    ATTACHMENT  PROCEEDINGS  IN  COURT 
I.  Special  Appearance  of  the  Defendant      .... 

II.  General  Appearance 

HI.  Withdrawal  of  Attorneys  —  Effect  on  Previous 

Appearance      

IV.  Proceedings  to  Vacate  Attachment  —  In  General  . 

V.  Quashing  for  Errors  Patent 683-699 

VI.  Dissolution  on  Evidence  Beyond  the  Record    .     .      700-710 
VII.  Traverse  After  Dissolution  by  Bonding  ....      711-718 


CHAPTER  XVIII.     EXEMPTION  — RELATIVE  TO  ATTACH- 
MENT AND  GARNISHMENT 719 

I.  Execution  and  Attachment 719-723 

II.  Claiming  Before  the  Levy 724-72G 

IIL  Claiming  in  Court 727-728 

IV.  Claim  Must  be  Before  Judgment 729-730 

V.  Claiming  Before  Sale 731-735 

VI.  Homestead  Not  Dedicated  After  Attachment   .     .  736 

VII.  Garnishment  as  to  Claim  of  Exemption    ....  737-742 

VIII.  Garnishment  in  a  Foreign  State 743-745 


CHAPTER  XIX     THE  DEFENDANT'S  BONDS       ....  746 

I.  The  Forthcoming  Bond 746-761 

II.  The  Dissolution  Bond 762-769 

III.  Bond  Sureties 770-777 


655 

655-663 

664-668 

669-671 

672-685 

TABLE    OF    CONTENTS.  IX 

S€ctioixs* 
CHAPTER  XX.   THE  CREDITOR'S  CONTESTS  WITH  THIRD 

PARTIES 778 

I.  Intervention,  in  General 778-789 

IL  Junior  Attachers 790-798 

II'    Priority  of  Seizure 799-806 

IV   Priority  of  Garnishment ,  807-813 

V.  Simultaneous  Attachment 814-815 

VI.  Claimants 816-826 

VII.  Competition  with  Mortgagees 827-839 

VIIL  Competition  with  Assignees 840-847 

CHAPTER  XXI.     RIGHTS  OF  PURCHASERS 848 

L  Buying  Before  Levy  op  Attachment 848-855 

IL  Before  Amendment  of  Defects 856-863 

IIL  Purchase  at  Attachment  Sale 863-867 

IV.  No  Warranty  of  Title 868-870 

V.  Judgment  Owners'   Sales  as  to  Warranty— Dif- 
ference Between  Them  and  Attachment  Sales  .  871-872 
VI.  General  Liabilities  of  Sellers 873-875 

CHAPTER  XXII.    JUDGMENT 878 

L  Default 878-880 

IL  Judgment  Nisi 881-886 

III.  Final  Judgment 887-892 

IV.  Perfecting  the  Lien 893-904 

V.  Appeal 905-907 

VL  Attachment  Sale 908-914 

VII.  Distribution 915-916 

VIIL   JUDGilENT  FOR  DEFENDANT 917-920 

CHAPTER  XXIIL    FINAL  JUDGMENT  AGAINST  THE  GAR- 
NISHEE        921 

I.  In  General 921-925 

IL  When  Void  or  Voidable 926-931 

IIL  Interest,  when  Chargeable 932-936 

IV.  Costs,  Fees  and  Compensation 937-943 

V.  Garnishment  in  Execution 944-950 

VI.  Garnishee's  Plea  in  Defense  of  Subsequent  Suit  by 

THE  Attachment  Defendant 951-954 

ML  What  Judgment  is  a  Bar  to  Subsequent  Action    .  955-963 
VIIL  Subsequent  Suits  by  Garnishors  and  Others  Against 

Garnishees 964-967 

CHAPTER  XXIV.    SUITS  AGAINST  THE  ATTACHING  OF- 
FICER      968 

L  In  General 968-976 

IL  Suit  on  the  Sheriff's  Bokd 977-981 

IIL  Replevin  Suit  Against  the  Officer 982-192 


3;;  TABLE    OF   CONTENTS. 

Sections. 
CHAPTER  XXV.    DAMAGES   AGAINST   THE   PLAINTIFF 

FOR  WRONGFUL  ATTACHMENT 99^ 

L   RECONVENTION S^^  ^^ 

IL  Suit  After  Dissolution -^'^'^  '■^^■^ 

IIL  The  Bond  Obligation 1003-1006 

rv.  Suit  on  the  Attachment  Bond 1007-1017 

V.  ExEMPLAKY  Damages • 1018-1026 

VL  Recovery  of  Costs  and  Fees 1027-1035 

INDEX ^^^'  ''' 


TABLE  OF  CASES. 


TJie  references  are  to  ^Kiges. 


A. 

Abbott  V.  Davidson,  193,  193,  305. 

Abbott  V.  Seiiiple,  586. 

Abbott  V.  Sheppard,  422,  434. 

Abbott  V.  Smith,  297. 

Abbott  V.  Stinchfield,  299,  634. 

Abbott  V.  Wlnpple,  681. 

Abbott  V.  Wilson,  515. 

Abell  V.  Simon,  357. 

Abels  V.  Insurance  Co..  214. 

Abels  V.  IMobile  Real  Estate  Co.,  329. 

Abernathy  v.  Ai'mstrong,  48. 

Abernathy  v.  Whitehead,  559. 

Abraliam  v.  Davenport,  495. 

Abraham  v.  Nierosi,  31,  431. 

Abrams  v.  Johnson,  22. 

Accessory  Co.  v.  McCurran,  12,  675. 

Achelis  v.  Kahnan,  94. 

Ackley  v.  Chamberlain,  4,  504. 

Ackroyd  v.  Ackroyd,  74,  87. 

Acme  Lumber  Co.  v.  Shoe  Co.,  347. 

Adair  v.  Stone,  77. 

Adam  v.  Gomiia,  698. 

Adams'  Appeal.  294. 

Adams  v.  Abram,  238. 

Adams  v.  Aver3%  259. 

Adams  v.  Balch,  395. 

Adams  v.  Barrett,  271,  292,  316,  385. 

Adams  v.  Basile,  234. 

Adams  v.  Bushey,  512. 

Adams  v.  Cordis,  632. 

Adams  v.  Evans,  27. 

Adams  v.  Filer,  644. 

Adaros  v.  Fox,  402. 

Adams  v.  Gillam.  657. 

Adams  v.  Hackett,  639. 

Adams  v.  Milliard.  96. 


Adams  v.  Jacoway,  143. 

Adams  v.  Kellogg,  101,  147. 

Adams  v.  Kibler,  594. 

Adams  v.  Lane,  288. 

Adams  v.  Lockvvood,  215. 

Adams  v.  Merritt,  115. 

Adams  v.  Newell,  507. 

Adams  v.  Penzell,  388,  637. 

Adams  v.  Robinson,  300. 

Adams  v.  Scott,  324. 

Adams  v.  Speelman.  213.  313,  317. 

Adams  v.  Willimantic  Linen  Co.,  305. 

Adams  Express  Co.  v.  Hill,  45,  62. 

Adanison  v.  Jarvis,  174. 

Adkins  v.  Saxtou,  183. 

Adler  v.  Anderson,  541. 

Adler  v.  Baltzer,  493,  623. 

Adler  v.  Ecker,  303. 

Adler  v.  Roth,  10,  13,  306,  395,  403, 

620. 
Adoue  V.  Jemison,  209. 
Adoue  V.  Seligsou  &  Co.,  36,  371,  559. 
Aflfeld  V.  People,  132. 
Agnevv  v.  Leath,  517. 
Agnew  v.  Waldeu,  503. 
Agricultural  Ass'n  v.  Madison,  82,  83. 
Ah  Thaire  v.  Quan,  684. 
Abern  v.  Purnell,  581. 
Aikwith  V.  Allen,  43. 
Alabama,  etc.,  R.    Co.  v.  Churabey, 

334,  453. 
Alabama  Land  Co.  v.  Reed,  681. 
Alamo  Ice  Co.  v.  Yancey,  630. 
Albachten  v.  Chicago,  etc.,  R.   Co., 

051. 
'Albany  City  Ins.  Co.  v.  Whitney,  531. 
Albee  v.  W^ard,  442. 
Albee  v.  Webster,  225. 


xu 


TABLE    OF   CASES. 


The  references 

Albertson  v.  Eclsall,  465. 
Albrecht,  In  re,  528. 
Albrecht  v.  Long,  547. 
Albrecht  v.  Treitschke,  499,  507. 
Aldrich  v.  Arnold,  570. 
Aldrich  v.  Brooks,  262. 
Aldrich  v.  Etna  Co.,  643. 
Aldrich  v.  Wallace,  182. 
Aldrick  v.  Woodcock,  413. 
Alexander  v.  Abbott,  254. 
Alexander  v.  Brown,  465. 
Alexander  v.  Denaveaux,  83,  398. 
Alexander  v.  Haden,  93. 
Alexander  v.  Harrison,  690,  691. 
Alexander  v.  Hutchinson,  688,  689. 
Alexander  v.  Jacob,  534. 
Alexander  v.  Jacoby,  491,  680. 
Alexander  v.  King,  548. 
Alexander  v.    Lloyd  and  Insurance 

Co.,  353. 
Alexander  v.  Perdue,  130. 
Alexander  v.  Pollock,  509. 
Alford  V.  Cobb,  91. 
Alfred  v.  Bray,  224. 
Allard  v.  De  Brot,  626. 
Alleghany  Savings  Bank  v.  Meyer, 

384. 
Allen  V.  Bank  of  Key  West,  467. 
Allen  V.  Blunt,  440. 
Allen  V.  Brown,  115. 
Allen  V.  Butler,  400. 
Allen  V.  Carty,  402. 
Allen  V.  Center  Valley  Co.,  305. 
Allen  V.  Clayton,  605. 
Allen  V.  Coates,  463. 
Allen  V.  Doyle,  402. 
Allen  V.  Eldridge,  43. 
Allen  V.  Erie  Bank,  200,  475. 
Allen  V.  Fleming,  93,  196. 
Allen  V.  Fox,  682. 
Allen  V.  Fuget,  50. 
Allen  V.  Gilliland,  620. 
Allen  V.  Hall,  371,  373. 
Allen  V.  Hammond,  592,  594. 
Allen  V.  Hazen,  363. 
Allen  V.  Kinyon,  104. 
Allen  V,  Kirk,  223. 
Allen  V.  Lee,  86. 


are  to  pages. 

Allen  V,  McCalla,  220,  334,  263. 
Allen  V.  Megguire,  371. 
Allen  V.  Morgan,  371. 
Allen  V.  Russell,  886. 
Allen  V.  Watt,  379.  644. 
Allen  V.  Wright,  391. 
Allerton  v.  Eldridge,  518. 
Alley  v.  Daniel,  498. 
Alley  V.  Myers,  544. 
Allison  V.  Graham,  309. 
Allison  V.  Wilson's  Ex'rs,  293. 
Allman  v.  Owen,  637. 
Allyn  V.  Willis,  195. 
Almy  V.  Thurber,  383,  403. 
Alsbrook  v.  Hathaway,  72. 
Alsdorf  V.  Reed,  270. 
Alston  V.  Clay,  385. 
Alston  V.  Newcomer,  38,  33. 
Alsup  V.  Jordan.  498. 
Alter  V.  Brooke,  276. 
Altmeyer  v.  Caul  field,  78,  86. 
Alves  V.  Baker,  298. 

Alves  V.  Barber,  570. 

Anibach  t.  Armstrong,  478. 

American  Bank  v.  Indiana  Banking 
Co.,  630. 

American  Bank  v.  Rollins,  645. 

American  Bank  v.  Snow,  389. 

American  Bank  v.  Voisiu,  150,  591. 

American  Button-hole  Co.  v.  Burgess, 
364. 

American  Ex.  Bank  v.  Morris  C.  & 
B.  Co.,  12. 

American  Express  Co.  v.   Judge  of 
Wayne  Co.,  428. 

American  Express  Co.  v.  Smith,  197. 

American  Ins.  Co.  v.  Hettler,  117. 

American  Land  Co.  v.  Grady,  77. 

Amos  V.  Alluut,  137. 

Amoskeag  Co.  v.  Gibbs,  278. 

Amy  V.  The  Supervisors,  669. 

Anderson  v.  Assurance  Co.,  331. 

Anderson  v.  Coal  Co.,  111. 

Anderson  v.  Coburn,  16,  347,  433,  436, 
437,  445,  457,  585. 

Anderson  v.  Doak,  186. 

Anderson  v.  Fitzpatrick,  181. 

Anderson  v.  Goff,  431,  607. 


TABLE   OF   CASES. 


XIU 


Tlie  references  are  to  ixiges. 


Anderson  v.  Graff,  341. 

Anderson  v.  Johnson,   103,  431,   472, 

603. 
Anderson  v.  Land,  547,  614. 
Anderson  v.  Odell,  494,  505. 
Anderson  v.  O'Reilly,  49. 
Anderson  v.  Patterson.  50. 
Anderson  v,  Roberts,  577. 
Anderson  v.  Scott,  328,  329,  335,  237, 

244. 
Anderson  v.  Shaffer,  440. 
Anderson  v.  Sutton,  80. 
Anderson  v.  Wanzer,  363. 
Anderson  v,  Wehe,  90,  91, 
Andre  v.  Fitzhugh,  520. 
Andrews   v.   Glenville  Woolen   Co., 

680. 
Andrews  v.  Herring,  304. 
Andrews  v.  Kaufmans.  544. 
Andrews  v.  Ludlow,    199,    256,    270, 

505. 
Andrews  v.  Mundy,  26.  184,  460. 
Andrews  v.  Ohio  R  R.  Co.,  251,  252. 
Andrews  v.  Powell,  651. 
Anerbach  v.  Hitchcock,  16. 
Anet  V.  Albo,  491. 
Angier  v.  Ash,  539. 
Anter  v.  Steamboat,  108. 
Anthanissen  v.  Towing  &  Wrecking 

Co.,  288,  395. 
Anthony  v.  Comstock.  399. 
Anthony  v.  Wood,  201,  570,  571. 
Applegate  v.  Lexington,  etc..  Mining 

Co.,  603. 
Apijleton  V.  Speer,  476. 
Applewhite  v.  Mill  Co.,  516,  565. 
Archer  x.  Claflin,  98. 
Archer  v.  Noble,  170,  225. 
Archer  v.  Savings  Bank,  258. 
Argyle  v.  Dwinel,  208. 
Arlege  v.  White,  260. 
Armor  v.  Cockburn,  257. 
Armour  Bank  Co.  v.  Smith,  214. 
Armour  Banking  Co.  v.  St.  Louis  N. 

Bank,  329. 
Armstrong  v.  Cook,  485. 
Armstrong  v.  Heritage,  355. 
Armstrong  v.  Tuttle,  641. 


Arnold  v.  Nye,  165,  254,  428. 

Arnold  v.  Patrick,  617. 

Arnold  v.  Weimer,  572. 

Arrington  v.  Screws,  186. 

Arthur  v.  Hale.  639. 

Arthur  v.  Israel.  357. 

Ash  V.  Aiken,  291, 

Ash  V.  Calhoun,  291. 

Ashby  T.  Watson,  363. 

Ashland  Bank  v.  Mead,  577. 

Ashley  v.  Wright,  568. 

Ashmun  v.  Williams,  213. 

Askew  V.  Stevenson,  479. 

Atcheson  v.  Smitli,  341,  377, 

Athanissen  v.  Towing  &  Wrecking 

Co.,  143. 
Atherton  v.  Fowler,  196. 
Atkins  V.  Kinnan,  16. 
Atkins  V.  Prescott,  277. 
Atkins  V.  Swope,  395,  672,  675. 
Atkins  V.  Womeldorf,  113,   164,  166, 

481. 
Atkinson  v.  Foxworth,  520. 
Atkinson  v.  James,  162. 
Atkinson  v.  Wiggins,  336. 
Atlantic  Ins.  Co.  v.  McLoon,  70. 
Atlantic  Ins.  Co.  v.  Wilson,  363. 
Atlantic  &  Pac.  R.  R.  Co.  v.  Hopkins, 

437,  639. 
Atlas  Bank  v.  Nahant  Bank,  544. 
Atlas  Furniture  Co.  v.  Freeman,  99. 
Atwell  T.  Wigerson,  236. 
Atwood  V.  Dumas,  330. 
Atwood  V.  Hale,  259. 
Audenreid  v.  Hull,  461,  612. 
Auerbach  v.  Hitchcock,  50,  04,  103, 

434. 
Aultman  v.  Baggs,  59. 
Aultman  v.  Stinan,  457. 
Aultmeyer  v.  Caulfield,  15. 
Aurora  City  v.  West,  501. 
Austin  V.  Bodle,  451. 
Austin  V.  Bodley,  422,  434. 
Austin  V.  Burgett,  1S4,  491,  520,  523. 
Austin  V.  Burlington,  64. 
Austin  V.  Grout,  75. 
iVustin  T.  Latham,  81. 
.A.ust.in  V.  Stanley,  504. 


XIV 


TABLE    OF    CASES. 


Tlie  references  are  to  pages. 


Averill  t.  Loucks,  48. 
Averill  v.  Tucker,  289,  308, 
Avery  v.  Good,  244. 
Avery  v.  Lackland,  299. 
Avery  v.  Perry  Stove  Co.,  193. 
Avery  v.  Stephens.  10,  504. 
Avery  v.  Zander,  89. 
Avet  v.  Albro,  514,  516. 
Axman  v.  Dueker,  355. 
Axtell  v.  Gibbs,  347,  376. 
Ayer  v.  Brown,  508. 
Ayres  v.  Harness,  515. 
Ayres  v.  Husted,  74. 

B. 

Babb  v.  Elliott,  203. 

Babbitt  V.  Doe,  238,  254. 

Babe  v.  Coyne,  169. 

Bachelor  v.  Bachelor,  251,  253. 

Bacher  v.  Morris,  418. 

Bacher  v.  Shawhan.  245. 

Bachman  v.  Lewis,  77. 

Backus  V.  Kimball,  92,  421. 

Bacon  v.  Daniels,  399,  529. 

Bacon  v.  Home,  194. 

Bacon  v.  Leonard,  206,  244, 

Bacon  v.  Stone,  42. 

Bacon  v.  Thompson,  562. 

Badlam  v.  Tucker,  268,  395. 

Baer  v.  English,  329,  366. 

Baer  v.  Otto,  486. 

Baere  v.  Armstrong,  144. 

Baesker  v.  Picket,  499. 

Bagley  v.  Tate,  534. 

Bagley  v.  Ward,  12. 

Bagley  v.  White,  403,  427. 

Bailee  v.  Mosher,  509. 

Bailey  v.  Adams,  220. 

Bailey  v.  Beadles,  88. 

Bailey  v.  Childs,  213.  214. 

Bailey  v.  Leather  Co.,  129. 

Bailey  v.  Nat.  Bank,  113. 

Bailey  v.  New  York  Central  R.  Co., 

320. 
Bailey  v.  Smith,  165. 
Bailey  v.  Smock,  58. 
Bailey  v.  Valley  Bank,  150. 


Baily  v.  Lacey,  641. 

Baily  v.  Myrick,  252. 

Baily  v.  Wright,  219. 

Bain  v.  Mitchell,  67. 

Bainbridge  v.  Alderson,  27,  30,  346. 

Baines  v.  J.emison,  449,  682. 

Baines  v.  Ulman,  166,  688,  695. 

Baird  v.  Georgia  Pac.  R.  Co.,  129. 

Baird  v.  Rice,  240. 

Baird  v.  Trice,  504. 

Baird  v.  Williams,  469.  547,  549. 

Baker  v.  Avers,  61,  157. 

Baker  v.  Baker,  211. 

Baker  v.  Central  Vt.  R.  Co.,  632. 

Baker  v.  Eglin,  257,  262,  267. 

Baker  v.  Hunt,  80. 

Baker  v.  Lancashire  Ins.  Co.,  637. 

Baker  v.  IMoody,  300. 

Baker  v.  Morrison,  513,  516/ 

Baker  v.  Railroad  Co.,  634. 

Baker  v.  Warren,  401,  403. 

Baker's  Estate,  30a 

Baker  Wire  Co.   v.   Kingman,  J.12, 

116. 
Balch  V.  Patten,  72. 
Balder  v.  Cohen,  556. 
Balderstone  v.  Manro,  298. 
Baldwin  v.  Conger,  227,  241. 
Baldwin  v.  Cooper,  472. 
Baldwin   v.   Ferguson,   96,    130,  255, 

276,  359. 
Baldwin  v.  Flagg,  25,  27,  28,  187. 
Baldwin  v.  Jackson,  213,  404,  427. 
Baldwin  v.  McClelland,  458. 
Baldwin  v.  Morrill,  388. 
Baldwin  v.  Mumford,  674. 
Baldwin  v.  Murphy,  463. 
Baldwin  v.  Walker,   32,  687,  690,  696. 
Baldwin's  Appeal,  355. 
Balkum  v.  Reeves,  631, 
Balkum  v.  Strauss,  631. 
Ball  V.  Badger,  176,  656. 
Ball  V.  Citizens'  Bank,  369. 
Ball  V.  Claffin,  399,  540. 
Ball  V.  Gardner,  144. 
Ball  V.  Gilbert,  273. 
Ball  V.  Liney,  170. 
Ball  V.  Young,  277,  345. 


TABLE   OF   CASES. 


XV 


The  references  are  to  pages. 


Ballard  v.  Great  Western  Co.,  15, 563. 

Balliet  v.  Brown,  258. 

Balliet  v.  Scott,  301. 

Ballinger  v.  Lautier,  34. 

Balston  Spa  Bank  v.  Marine  Bank, 

328. 
Baltimore  v.  Root,  316. 
Baltimore  Bank  v.  Teal,  59. 
Baltimore  &  Ohio  R.  R.  Co.  v.  Galla- 

hue,  284,  310,  319,  463. 
Baltimore  &  Ohio  R.  R.  Co.  v.  May, 

647. 
Baltimore  &  Ohio  R.  R.  Co.  v.  Taylor, 

143,  629. 
Baltimore  &  Ohio  Ry.  Co.  v.  Wheeler, 

257,  268. 
Baltimore,  etc.,  R.  Co.  v.  McCullough, 

272. 
Bamberger  v.  Halberg,  536. 
Bamberger  v.  Moayon,  67. 
Bamberger  v.  Terry,  66. 
Bamberger  v.  Voorhies,  619. 
Bank  Cases,  593. 
Bank  v.  Blossom,  112. 
Bank  v.  Byrne,  135. 
Bank  v.  Carrol Iton  R.  R,  183. 
Bank  v.  Damm,  68. 
Bank  v.  Dibrell,  316. 
Bank  V.  Drury,  567. 
Bank  v.  Ford,  275. 
Bank  v.  Glaser,  636. 
Bank  v.  Goodall.  346. 
Bank  v.  Goodrich,  50. 
Bank  v.  Haiman,  377. 
Bank  v.  Heath,  696,  698. 
Bank  v.  Johnson,  428. 
Bank  v.  McCord,  516. 
Bank  v.  Mixter,  49,  169. 
Bank  v.  Orton,  50. 
Bank  v.  Payne,  37,  42,  51,  343,  484, 

549. 
Bank  v.  Robinson,  639. 
Bank  v.  Sterling,  139. 
Bank  v.  Wetmore,  78. 
Bank  v.  Wittish,  568. 
Bank  of  Alabama  v.  Berry,  92, 125. 
Bank  of  Alabama  v.  Fitzpatrick,  129, 

157,  476,  678. 


Bank  of  America  v.  Indiana  Bank- 
ing Co.,  321. 
Bank  of  America,  etc.  v.  Burdick, 

570. 
Bank  of  Augusta  v.  Conrey,  16,  141, 

476. 
Bank  of  Augusta  v.  Earle,  331. 
Bank  of  Augusta  v.  Jaudon,  540. 
Bank  of  California  v.  Boyd,  89. 
Bank  of  Chester  v.  Ralston,  292. 
Bank  of  Commerce  v.  Rutland,  etc., 

R  R.  Co.,  465,  484. 
Bank  of  Fayetteville  v.  Spurling,  540. 
Bank  of  Garfield  Co.  v.  Bingham,  65. 
Bank  of  Lansingburgh  v.  McKie,  465. 
Bank  of  Louisiana  v.  Stafford,  535. 
Bank  of  Mo.  v.  Bredow,  41 1. 
Bank  of  N.  America  v.  McCall,  76. 
Bank  of  Northern  Liberties  v.  Jones, 

265. 
Bank  of  North-West  v.  Taylor,  228, 

239. 
Bank  of  Rome  v.  Ilaselton,  548. 
Bank  of  St.  Mary  v.  Morton,  303. 
Bank  of  Tennessee  v.  Dibrell,  308. 
Banks  v.  Hunt,  382. 
Banks  v.  Self,  154. 
Bancroft  v.  Curtis,  187. 
Bancroft  v.  Sinclair.  240. 
Banfield  v.  Wiggin,  265. 
Bangs  V.  Beacham,  399,  599. 
Banning  v.  Sibley,  384. 
Bannister  v.  Carroll,  151. 
Bannister  v.  Higginson,  227,  228,  240, 

242,  244. 
Banta  v.  Reynolds,  169. 
Banta  v.  Wood,  4,  43,  432,  606. 
Barber  v.  Howd,  645. 
Barber  v.  Morris.  3. 
Barber  v.  Parker,  304,  639. 
Barber  v.  Robeson,  39,  98,  184. 
Barber  v.  Smith,  115,  582,  629. 
Barber  v.  Swan,  479. 
Barbieri  v.  Ramelli,  14 
Barbour  t.  Lodge,  82. 
Bardsley  v.  Hiues,  122. 
Bardwell  v.  Perr\-,  618. 
Barelli  v.  Wagner,  122,  604. 


XVI 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Barkaloo  v,  Randall,  129. 
Barker  v.  Abbott,  673,  685,  688. 
Barker  v,  Esty,  271. 
Barker  v.  McLeod,  573. 
Barker  v.  Miller,  395,  399. 
Barker  v.  Osborne,  299,  385. 
Barker  v.  Thorn,  91. 
Barksdale  v.  Hendree,  16. 
Barlow  v.  Hall,  219. 
Barmon  v.  Clippert,  667. 
Barnard  v.  Graves,  259,  289, 
Barnard  v.  Life  Ins.  Co.,  214. 
Barnard  v.  Sebre,  106. 
Barnes  v.  Buck,  71. 
Barnes  v.  Hays,  560. 
Barnes  v.  McMullins,  373. 
Barnes  v.  The  People,  251. 
Barnes  v.  Treat,  285,  287,  292. 
Barnes  v.  Wayland,  381. 
Barnes  v.  Webster,  128. 
Barnet  v.  Fergus,  49. 
Barnet's  Case,  28,  585. 
Barnett  v.  Kinney,  510. 
Barnett  v.  Rayburn,  458. 
Barnett  v.  Ring,  447. 
Barnett  v.  Watson,  582. 
Barnett  v.  Weaver,  292. 
Barney  v.  Douglass,  302. 
Barney  v.  Globe  Bank.  340. 
Barney  v.  Kenistou,  498,  505. 
Barney  v.  Patterson,  38. 
Barney  v.  Rockwell,  159,  210. 
Barney  v.  Weeks,  233. 
Barnstable,  etc.  v.  Higgins,  528. 
Barnum  v.  Boughton,  293. 
Baruum  v.  Circuit  Judge,  269. 
Baruuni  v.  Fitzpatrick,  586. 
Barr  v.  King,  331,  333. 
Barr  v.  Perry,  360. 
Barrett  v.  Spaids,  691. 
Barrett  v.  White,  222. 
Barriere  v.  McBean,  110. 
Barrill  v.  Humphreys,  86. 
Barron  v.  Arnold,  179. 
Barron  v.  Cobleigh,  395. 
Barron  v.  Smith,  228,  234,  394. 
Barrow  v.  West,  647. 
Barry  v.  Fisher,  275. 


Barry  v.  Foyles,  491,  531. 

Barry  v.  Fraysei-,  520. 

Barry  v.  Hogan,  390. 

Bartell  v.  Bauman,  293. 

Bartemeyer  v.  Iowa,  669. 

Barth  v.  Backus,  195. 

Bartholomew    v.    Chautauqua    Co. 

Bank,  582. 
Bartholomew  v.  Warner,  590. 
Bartle  v.  Coleman,  184. 
Bartlett  v.  Board,  516. 
Bartlett  v.  McNeil,  421. 
Bartlett  v.  Spicer,  421. 
Bartlett  v.  Ware,  59,  87,  89. 
Bartlett  v.  Wilbur,  369,  376,  382. 
Bartlett  v.  Wood,  263. 
Barton  v.  AUbright,  569,  644,  647. 
Barton  v.  Brown,  501. 
Barton  v.  Smith,  645. 
Bassett  v.  Garthwaite,  279. 
Bassett  v.  Hughes,  483. 
Batchellor  v.  Richardson,  363. 
Bate  V.  McDowell,  129.  130, 134. 
Bateman  v.  Backus,  579. 
Bateman  v.  Ramsey,  74,  539,  541,  688. 
Bates  V.  Bates,  508. 
Bates  V.  Chicago,  etc.,  R.  Co.,  334. 
Bates  V.  Clark.  682. 
Bates  V.  Crow,  4,  5,  253,  426,  434 
Bates  V.  Days,  340,  436. 
Bates  V.  Delavan,  606. 
Bates  V.  Forsyth,  339,  383,  384. 
Bates  V.  Killian,  491. 
Bates  V.  New  Orleans,  etc.,  R  R.  Co., 

273,  282. 
Bates  V.  Plousky,  10,  570. 
Bates  V.  Railroad  Co.,  344. 
Bates  V.  Relyea,  121. 
Bates  V.  Robinson,  82,  110. 
Bates  V.  Tappan,  527. 
Battis  T.  Hamilton,  321. 
Battles  V,  Simmons,  361. 
Bauer  v.  Deane,  547. 
Baugh  V.  Barrett,  507. 
Baugh  V.  Kirkpatrick,  411. 
Baum  V.  Gosline,  620. 
Baum  V.  Raphael,  468. 
Baumbach  v.  Singer,  306. 


TABLE    OF    CASES. 


XVll 


Tlie  references  are  to  jDoges. 


Baumgardner  v,  Dowagiac  Man.  Co., 

89. 
Baune  v.  Thomassin,  75. 
Baur  V,  Antoine,  492,  496. 
Baxley  v.  Liuaii,  524,  561. 
Baxter  v.  Currier,  261. 
Baxter  v.  Rice,  232,  239. 
Baxter  v.  Mo.,  etc.,  R.  Co.,  383. 
Baxter  v.  Vincent,  282,  649. 
Ba)'er  v.  Grove,  536. 
Bayersdorfer  v.  Hart,  4. 
Bay  ley  v.  Ward,  154. 
Bayliss  v.  Houghton,  510. 
Beach  v.  Botsford,  93,  121,  123. 
Beach  v.  Viles,  372. 
Beadle  v.  Graham,  626. 
Beal  V.  Alexander,  492,  522. 
Beamer  v.  Freeman,  568. 
Beamer  v.  Winter,  337. 
Bean  v.  Ayres,  401. 
Beau  V.  Barney,  624. 
Beau  V.  Bean,  259. 
Bean  v.  Hatcher,  79. 
Bean  v.  Hubbard,  170,  222,  223. 
Bean  v.  Insurance  Co.,  508. 
Bean  v.  Parker,  506. 
Bean  v.  Patterson,  192. 
Bean  v.  Union  Bank,  263. 
Beans  v.  Bullitt,  266. 
Bear  v.  Marx,  687. 
Beard  v.  Wilson,  603. 
Beardslee  v.  Morgan.  148. 
Beardsley  v.  Beardsley,  369. 
Beardsley  v,  Morgan,  477. 
Beasley  v.  Parker,  58. 
Beaupre  v.  Brighara,  246. 
Beaupre  v.  Keefe,  376. 
Beauregard  v.  New  Orleans,  441. 
Beaver  Valley  Bank  v.  Cousins,  275. 
Bebb  V.  Preston,  381. 
Becker  v.  Bailies,   16,   225,   394,   427, 

433,  656. 
Becker  v.  Dunham,  208,  225,  655, 658. 
Becker  v.  Hulme,  652. 
Becker  v.  Langford,  485. 
Beckert  v,  Whitlock,  382. 
Becknell  v.  Becknell,  626. 
Beck's  Estate,  206. 

B 


Beckwith  v.  Bank,  302. 

Beckvvith  v.  Baxter,  292,  316. 

Beckwith  v.  Douglass,  246,  434. 

Beckwith  v.  Sibley,  14. 

Beebe  v.  Morrill,  110,  111. 

Beech  v.  Abbott,  249,  400,  431. 

Beecher  v.  Brookfield,  575. 

Beecher  v.  James,  477. 

Beecher  v.  Stephens,  250. 

Beekman  v.  Lansing,  224. 

Beer  Co.  v.  Massachusetts,  669. 

Beers  v.  Place,  190,  285. 

Beers  v.  St.  John,  190. 

Behrens  v.  McKenzie,  696. 

Belden  v.  Wilcox,  89. 

Belfast  Savings  Bank  v.  K.  L.  &  L. 

Co.,  59,  89. 
Belknap  v.  Gibbons,  260,  391. 
Bell  V.  Allen,  85, 
Bell  V.  Austin,  583. 
Bell  V.  Craig,  592. 
Bell  V.  Davis,  499. 
Bell  V.  Gaylord,  245. 
Bell  V.  Green,  619. 
Bell  V.  Hall,  114. 
Bell  V.  Jones,  363. 
Bell  V.  Kendall,  576. 
Bell  V.  Kendrick,  361. 
Bell  V.  Shafer,  212,  400. 
Bell  V.  Western,  etc.,  Co.,  609. 
Bell  V.  Wood,  275. 
Bellows,  In  re,  7. 
Beloit  V.  Morgan,  501. 
Belou  V,  Robbins,  478. 
Bender  v.  Fromberger,  595,  596. 
Benedict  v.  Bray,  9,  37,  137,  148,  476, 

477,  678. 
Benham  v.  Ham,  191. 
Benjamin  v.  Davis,  79. 
Benjamin  v.  Shea,  241. 
Benjamin  v.  Stern,  572. 
Bennett  v.  Avant,  39,  41,  93. 
Bennett  v.  Brown,  395,  695. 
Bennett  v.  Edwards,  91,  118,  433. 
Bennett  v.  Wolverton,  558. 
Bennett  v.  Zabriski,  So,  142,  158. 
Benson  v.  Berry,  190,  213,  285. 
Benson  v,  Carr,  470. 


XVIU 


TABLE   OF   CASES. 


Tlie  references  are  to  pages. 


Benson  v,  Hollawav,  S77,  626. 
Benson  v.  McCoy,  6S9.  690. 
Bentley  v.  Shrieve,  289. 
Bentley  v.  Smith,  582. 
Bentley  v.  'Wbite,  226,  655. 
Benton  v.  Dutcher,  312. 
Benton  v.  Lindell.  369. 
Benton  v.  Roberts,  522. 
Benton  v,  Snyder,  337. 
Bergen  Turnpike  Co.  v.  State,  442. 
Bergesch  v.  Keevil,  S3. 
Bergh  v.  Jayne.  97. 
Bergman  v.  Sells.  11.  548.  550. 
Berliymer  v.  Cook,  497,  505. 
Berly  v.  Taylor,  76. 
Bernall  v.  Hovions,  186. 
Bernard  v.  Moore,  268. 
Bernheim  v.  Brogan,  637. 
Bernheim  v.  Dibrell,  577. 
Bernheim  v.  Shannon,  517,  657, 
Berry  v.  Anderson,  604 
Berry  t.  Callet.  601. 
Berry  v.  Charlton,  502. 
Berry  v.  Davis,  54. 
Berry  v.  Doty,  602. 
Berry  v.  Xelson,  603. 
Berry  v.  Nichols,  495. 
Berry  v.  Spear,  236. 
Berryman  v.  Stern,  10. 
Beseman  v.  Weber,  150. 
Bessey  v.  Vose,  217,  546. 
Besshears  v.  Rome,  274. 
Betancourt  v.  Eberlin,  607. 
Betancourt  v.  Madual,  499. 
Bethel  v.  Chipman,  263,  276,  381. 
Bethel  v.  Linn,  263,  385. 
Bethune  v.  Gibson,  12,  620. 
Betterton  v.  Eppstein,  413,  430. 
Betts  T.  Gibbons,  174 
Betzemann  v.  Brooks,  474 
Beverstock  v.  Brown,  293. 
Bevier  v.  Dillingham,  376. 
Bholen  v.  Cleveland,  302. 
Bibb  V.  Smith,  306. 
Bickerstaff  v.  Patterson,  228,  230. 
Bickford  v.  Rice,  632. 
Bickler  v.  Kendall,  210.  212,  394 
Bicknell  v.  Cleverly,  565. 


Bicknell  v.  Hill.  403. 

Bicknell  r.  Trickey,  210. 

Biddle  v.  Black,  5,  94 

Biering  v.  First  N.  Bank,  694 

Bierne  v.  Baton,  195. 

Bigelow  v.  Andress,  337. 

Bigelow  V.  Stearns,  442. 

Biggs  V.  Blue.  121. 

Bildersee  v.  Aden,  527,  539,  690. 

Bills  V.  Nat.  Park  Bank,  202,  279. 

Biug  Gee  v.  Ah  Jim,  143,  144 

Bingham  v.  Lamping.  627. 

Bingham  v.  Rushing,  336. 

Binns  v,  Williams,  470. 

Birch  V.  Prodger,  219. 

Bird  V.  Perkins,  169. 

Birdsall  v.  Wheeler,  519. 

Birdsong  v.  Birdsong,  253. 

Birdsong  v.  McLaren,  83,  127. 

Birtwhistle  v.  Woodward,  276,  641. 

Bisbee  v.  Bowden,  482. 

Bishop  V.  Finnerty,  5,  106. 

Bishop  V.  Holcomb,  303. 

Bishop  V.  Young,  262,  273. 

Bissell  V.  Briggs,  433,  451. 

Bissell  V.  Nooney,  545. 

Bissell  V.  Strong,  260,  561. 

Bittingsby  v.  Harris,  144. 

Bivens  v.  Harper.  289,  314  315. 

Bivens  v.  Mathews,  4,  57,  433. 

Bivens  v.  School  Directors,  289. 

Bixby  V.  Smith,  60. 

Black  V.  Black,  274 

Black  V.  Brisbin,  121. 

Black  V.  Cleudenin,  457. 

Black  V.  Dawson,  269. 

Black  V,  Long,  577,  578. 

Black  V.  Paul.  398. 

Black  V.  Scan  Ion,  90. 

Black  V.  Zacharie,  262. 

Blackburn  v.  Clarke,  208. 

Blackburn  v.  Davidson,  263. 

Black  Hills,  etc.  v.  Gardiner,  139. 

Blackley  v.  Matlock,  569. 

Blackstone  v.  St.  Louis,  etc.,  R  Co., 

382. 
Black  well  v.  Fry,  57. 
Blackwood  v.  Jones,  125,  456,  461. 


TABLE    OF    CASES. 


ZIX 


Tlie  references  are  to  pages. 


Blaine  v.  The  Charles  Carter,  435. 
Blair  v.  Canty,  191.  285.  287. 
Blair  v.  Puryear,  540. 
Blair  v.  Rhodes,  262. 
Blair  v.  Shaw,  162. 
Blair  v.  Shew,  161,  479. 
Blair  v.  Smith,  86. 
Blair  v.  Steinman,  521. 
Blair  v.  Weavei%  458. 
Biaisdell  v.  Ladd,  260,  337. 
Blake  v.  Bernhard,  97,  98. 
Blake  v.  Camp,  237. 
Blake  v.  Hatch,  213. 
Blake  v.  Rider,  207. 
Blakely  v.  Bird,  90. 
Blakely  v.  Smith,  192,  574 
Blanc  V.  Paymaster,  152. 
Blanc  V.  Tharp,  685. 
Blanchard  v.  Brown,  396,  486. 
Blanchard  v.  Cole,  372. 
Blanchard  v.  Coolidge,  496. 
Blanchard  v.  Grousset,  473. 
Blanchard  v.  Vargas,  381. 
Bland  v.  Bowie,  502. 
Blanfey  v.  Findley,  132. 
Blank  v.  Talcott,  48. 
Blankenship  v.  Moore,  261.  347. 
Blass  V.  Anderson.  580. 
Blass  V.  Lee,  103,  685. 
Blatchford  v.  Conover,  600. 
Blatchley  v.  Adair,  519. 
Blauvelt  v.  Fechtman,  171. 
Bledsoe  v.  Gary,  499. 
Bledsoe  v.  Wright,  471. 
Blevins  v.  Baker,  618. 
Bliss  V.  Heasty,  677. 
Bliss  V.  Smith,  350.  508. 
Bliss,  In  re,  121,  122. 
Bliss,  Matter  of,  92,  97,  119. 
Blood  V.  Harrington,  65. 
Blood  V.  Light,  618. 
Blood  worth  v.  Hunter,  534. 
Bloom  V.  Burdick,  254,  428,  442. 
Blossom  V.  Estes,  160,  334,  418. 
Blotchy  V.  Caplan,  186. 
Blum  V.  Addington,  488. 
Blum  V.  Davis,  105,  106. 
Blum  V.  Scram,  688. 


Blum  V.  Stein,  695. 

Blum  V.  Strong,  687. 

Blyler  v.  Kline,  461,  462. 

Boals  V.  Shules,  45,  457. 

Board  of  Education  v.  Scoville,  639, 

644. 
Boardman  v.  Bickford,  27,  28,  32,  41. 
Board  man  v.  Gushing,  373. 
Boardman  v,  Glenn,  16. 
Boardman  v.  Roe,  271. 
Boatman's  Bank  v.  Overall,  267. 
Boatwright  v.  Stewart,  9,  144,  680. 
Boaz  V.  Schneider,  555. 
Bobb  V.  Woodward,  53. 
Bodet  V.  Nibourel,  147. 
Bodwell  V.  Heaton,  248. 
Boehreinger  v.  Creighton,  397. 
Bogart  V.  Dart,  95.  185. 
Bogart  V.  Swezy,  252,  433. 
Bogert  V.  Philps,  170. 
Boggan  V.  Bennett,  498,  695. 
Boggs  V.  BiudskoflF,  32,  40. 
Boggs  T.  Douglass,  580. 
Boker  v.  Chapline,  440. 
Boland  v.  Ross,  621. 
Bolard  v.  Mason,  458. 
Boiling  v.  Tate,  696,  698. 
Bolton  V.  Pa.  Co.,  645, 
Boltz  V.  Eagon,  192,  569. 
Bond  v.  Epley,  602. 
Bond  V.  Greenwold,  520. 
Bond  V.  Padelfoid,  399,  401. 
Bond  V.  Patterson,  101. 
Bond  V.  Ward,  174,  211,  472,  692. 
Bonnaffon  v.  Thompson,  630. 
Bonner  v.  Brown,  137,  456,  472. 
Bonner  v.  Martin,  624. 
Booker  v.  Smith,  128,  147. 
Boone  v.  Mcintosh,  201,  281. 
Boone  v.  Savage,  90. 
Boone  Co.  v.  Keck,  312. 
Boor  man  v.  Brown,  76. 
Booth  V.  Barnum,  563. 
Booth  V.  Gish.  563. 
Booth  V.  Rees,  124, 169. 
Boothby  v.  Brown,  562. 
Boothe  V.  Estes,  107. 
Borden  v.  American  Surety  Co.,  492. 


XX 


TABLE   OF   CASES. 


Tlie,  references  are  to  pages. 


Borden  v.  Fitch,  426,  433,  442,  449. 
Borden  v.  McRae,  576. 
Borders  v.  Murphy,  422,  433. 
Boren  v.  BiUiugton,  382. 
Borland  v.  Kingsbury,  80,  122. 
Born  v.  Staaden,  304, 
Born  V.  WiUiaras,  314,  449. 
Borum  v.  Reed,  607. 
Bosbyshell  v.  Emanuel,  107. 
Boscher  v.  Roullier,  472,  486. 
Boston  Bank  v.  Minot,  293. 
Boston,  etc.,  R  Co.  v.  Gilmore,  496. 
Boston,  etc.,  R.  Co.  v.  Oliver,  372. 
Boston  Iron  Co.  v.  Boston  Works, 

195. 
Boston  Loan  &  Trust  Co.  v.  Organ, 

373. 
Boston  Type  Co.  v,  Mortimer,  373. 
Bostwick  V.  Bass,  275,  363,  366,  367. 
Bostwick  V.  Beach,  623. 
Bostwick  V.  Blake,  581. 
Boswell's    Lessee  v.    Otis,   250,    428, 

442.  447. 
Botsford  V.  Simmons,  300,  349. 
Bottom  V.  Clarke,  16. 
Boundred  v.  Del  Hoyo,  25. 
Bourne  v.  Cabot,  300. 
Bourne  v.  Hocker,  185,  478,  479. 
Bourne  v.  Merritt,  500,  501. 
Bowden  v.  Burnham,  66,  74,  541. 
Bowden  v.  Robinson,  649. 
Bowden  v.  Schatzell,  89. 
Bowe  V.  Reflector  Co.,  622. 
Bowe  V.  United  States  Reflector  Co., 

700. 
Bowe  V.  Wilkins,  497. 
Bowen  v.  Bank  of  Medina,  70. 
Bo  wen  v.  Crow,  275. 
Bowen   v.   First    National  Bank  of 

Medina,  24. 
Bowen  V.  Mulford,  364. 
Bowen  v.  Pope,  344,  359. 
Bowen  v.  School  District,  462. 
Bowen  v.  Slocum,  122,  125. 
Bower  v.  Feun,  593. 
Bower  v.  Town,  3,  426,  433,  472. 
Bowers  v.  Beck,  54. 
Bowers  v.  Insui-ance  Co.,  328,  364. 


Bowers  v.  Ross,  33. 

Bowker  v.  Hill,  199. 

Bowler  v.  European,  etc.,  Co.,  359. 

Bowler  v.  European,  etc.,  R  Co.,  327. 

Bowman  v.  Norton,  495,  504. 

Bowman  v.  Ferine,  26. 

Bowman  v.  Stark,  242. 

Bowring  v.  Bowring,  615. 

Box  V.  Lawrence,  7. 

Boxby  v.  Segrest,  686. 

Boyce  v.  Foot,  471. 

Boyce  v.  Grundy,  544. 

Boyce  v.  Smith,  568. 

Boyce  v.  Tabb,  438. 

Boyd  V.  Bayless,  260. 

Boyd  V.  Beck,  567. 

Boyd  V.  Boyd,  129.  476,  51.5. 

Boyd  V.  Brisban,  696,  698. 

Boyd  V,  Brown,  509. 

Boyd  V.  Buckingham,  125,  492,  514, 

Boyd  V.  Chesapeake  &  Ohio  Canal 

Co.,  319. 
Boyd  V.  Cobbs,  560. 
Boyd  V.  Insurance  Co.,  646. 
Boyd  V.  Labrauche,  53. 
Boyd  V.  Martin,  186,  677. 
Boyd  V.  Urquhart,  448. 
Boyer  v.  Bullard,  70,  76. 
Boyer  v.  Clark,  12,  672. 
Boyer  v.  Hawkins,  292. 
Boyes  v.  Coppinger,  483. 
Boykin  v.  Edwards,  166. 
Boyland  v.  Boyland,  248. 
Boyle  V.  Franklin  Fire  Ins.  Co.,  272. 
Brace  v.  Benson,  582. 
Brack  v.  McMahon,  65,  111. 
Bracket  v.  Harvey,  563. 
Brackett  v.  Blake,  22. 
Bradbury  v.  Van  Nostrand,  153. 
Bradford  v.  Coit.  462. 
Bradford  v.  Gillispie,  203. 
Bradford  v.  Johnson,  183. 
Bradford  v.  Mills.  284. 
Bradley  v.  Arnold,  223. 
Bradley  v.  Boriu,  681. 
Bradley  v.  Cooper,  75. 
Bradley  v.  Hunt,  200. 
Bradley  v.  Kroft,  129,  130,  135. 


TABLE   OF   CASES. 


2X1 


Hie  references  are  to  pages. 


Bradley  v.  Obear,  580. 

Bradley  v.  Town  of  Richmond,  313, 
316,  318. 

Bradshavv  v.  Tinsley,  70. 

Bradstreet  v.  Tlie  Neptune  Insur- 
ance Co.,  250,,  i'yi. 

Brady  v.  Tabor,  SM,  638. 

Brady's  Appeal,  163. 

Brafman  v,  Asher,  106. 

Braguuier  v.  Beck,  69. 

Brainard  v.  Burton,  240. 

Brainard  v.  Shannon,  364. 

Brainard  v.  Simmons,  391. 

Brainerd  v.  Bushnell,  235,  545. 

Brake  v.  Curd,  etc.,  Co.,  382,  625. 

Braley  v.  Boomer,  527. 

Braley  v.  Burns,  170. 

Braley  v.  Clark.  515. 

Braley  v.  French,  240. 

Bramfield  v.  Dyer,  594,  595. 

Bramhall  v.  Flood,  563. 

Branahl  v.  Watson,  651. 

Branch  v.  Branch,  134. 

Branch  v.  Frank,  85,  86,  481 

Branch  v.  Tomlinson,  503. 

Branch  Bank  v.  McDonald,  36. 

Branch  Bank  v.  Morris,  147. 

Branch  Bank  v.  Poe,  273.  318,  463. 

Branch  of  State  Bank  v.  Morris,  146. 

Brand  v.  Brown,  700. 

Brand  v.  Hinchman,  676,  685. 

Brand  v.  United  States,  593. 

Brandon  v.  Allen,  687. 

Brandon  v.  Shinn,  484. 

Brandon  Iron  Co.  v.  Gleason,  550, 
552. 

Branner  v.  Chapman,  459. 

Branshaw  v.  Tiusley,  14.  127. 

Branson  v.  Shinn,  38,  483. 

Brash  v.  Wielarsky,  476. 

Brashear  v.  West,  55,  410,  454. 

Brasher  v.  Holtz,  559,  561. 

Braunsdorf  v.  Felner,  486,   683,  684. 

Brauser  v.  Insurance  Co.,  323. 

Bray  v.  McCluey,  117. 

Bray  v.  Marsimll,  244 

Bray  v.  Saaman,  559,  659.     • 

Bray  v.  Wallingford,  312,  317. 


Bray  v.  Wheeler,  301. 
Bray  v.  Wise,  189. 
Braj'nard  v.  Burpee,  648. 
Brayton  v.  Freese,  116,  642. 
Brazier  v.  Chappell,  300. 
Breading  v.  Seigworth,  652. 
Brecht  v.  Corby,  353,  362. 
Breck  v.  Blair,  518. 
Breed  v.  Mitchell,  29. 
Breedlove  v.  Johnston,  516. 
Breene  v.  Bank,  407,  482. 
Brenner  v.  Hirsche,  277. 
Brenner  t.  Moj'er,  5,  523,  531. 
Breslauer  v.  Geilfuss,  539. 
Bresnahan  v.  Nugent,  306. 
Bretney  v.  Jones,  478. 
Brewer  v.  Springfield,  250. 
Brewer  v.  Tucker,  47,  97,  484. 
Brickey  v.  Davis,  549. 
Bridge  v.  Wyman,  402,  403,  405,  690. 
Bridge  Proprietors  v.  Hoboken  Com., 

438. 
Bridges  v.  North,  271. 
Bridges  v.  Perry,  894,  395. 
Bi'idges  V.  Williams,  100. 
Bridgman  v.  McKissock,  580. 
Brien  v.  Pitman,  601. 
Brierfield  Works  v.  Foster,  406. 
Brigdon  v.  Gill,  259,  271. 
Briggs  V.  Block,  259,  289,  300. 
Briggs  V.  French,  467. 
Briggs  V.  Gleason,  399. 
Briggs  V.  Hodgdon,  60. 
Briggs  V.  Kouns,  410. 
Briggs  V.  Mason,  401. 
Briggs  V.  Smith,  9,  137,  477,  678. 
Briggs  V.  Strange,  496. 
Brinegar  v.  Griffin,  470,  490. 
Brinker  v.  Leinkrauff,  177, 
Briusfield  v.  Austin,  253. 
Britt  V.  Bradshaw,  381. 
Brittain  v.  Anderson,  281. 
Britton  v.  Boyer,  48,  193. 
Broadhurst  v.  Morgan,  649. 
Broadstreet  v,  Clark,  510. 
Brode  V.  Firemen's  Ins.  Co.,  377. 
Brolaskey  v.  Landers.  36. 
Bromer  v.  Smith,  201. 


XXil 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Bromfleld  v.  Dyer,  590. 

Bromley  v.  Smitli.  440. 

Bronson  v.  Shinn,  25.  485. 

Brookmire  v.  Eosa,  117. 

Brooks  V.  Adams,  443. 

Brooks  V.  Bush,  579. 

Brooks  V.  Chatham,  498. 

Brooks  V.  Cook,  285,  287,  693. 

Brooks  V.  Hildreth,  299. 

Brooks  V.  Poiriex',  140. 

Brooks  V.  State,  213. 

Brotherton  v.  Thompson,  519. 

Brower  v.  Smith,  202. 

Bi'own  V.  Ainsworth,  466. 

Brown  v.  Ashbough,  27. 

Brown  v.  Bacon,  198. 

Brown  v.  Balde,  461. 

Brown  v.  Bank.  563. 

Brown  v.  Blanchard,  485. 

Brown  v.  Brown,  274,  388. 

Brown  v.  Campbell,  182. 

Brown  v.  Carroll,  227,  296,  656,  657, 

Brown  v.  Coats,  63,  74 

Brown  v.  Collins,  317. 

Brown  v.  Cook,  399. 

Brown  v.  Cooper,  405. 

Brown  v.  Crane,  25, 

Brown  v.  Crenshaw,  98. 

Brown  v.  Dudley,  644. 

Brown  v,  Elmendorf,  235. 

Brown  v,  Finley,  308, 

Brown  v,  Foster,  300, 

Brown  v.  Frost,  595, 

Brown  v.  Gummersell,  384. 

Brown  v.  Guthrie,  123. 

Brown  v.  Harris.  606,  614,  621. 

Brown  v.  Hawkins,  107,  112,  115. 

Brown  v.  Heath,  507. 

Brown  v.  Hinchman,  119. 

Brown  v.  Insurance  Co.,  329. 

Brown  v,  Jones,  696,  698. 

Brown  v,  Keifer,  268. 

Brown  v.  Leckie,  331. 

Brown  v.  Leitch,  503. 

Brown  v.  Lessing,  555. 

Brown  v.  McCluskey,  93. 

Brown  v.  McGehee,  542. 

Brown  v.  Mosely,  66. 


Brown  v.  Mossman,  51,  99, 
Brown  v,  Neale,  164. 
Brown  v.  Rice's  Adm'r,  594 
Brown  v.  Richmond,  395. 
Brown  v.  Ridgevvay,  487, 
Brown  v.  Saratoga  R.  R.  Co.,  457. 
Brown  V.  Seymour,  636, 
Brown  v.  Silsb3%  307. 
Brown  v.  Somerville,  647. 
Brown  v.  State,  258. 
Brown  v.  Tucker,  208,  544,  545. 
Brown  v.  United  States,  596. 
Brown  v.  Van  Braam,  438. 
Brown  v.  Warren,  373. 
Brown  v,  Watson,  180. 
Brown  v,  Whiteford,  134,  477. 
Brown  v.  W^igton,  473, 
Brown  v.  Williams.  245. 
Brown,  Matter  of,  30,  92. 
Brownell  v.  Manchester,  395,  899. 
Brownfield  v.  Dyer,  248, 
Brownwell  v.  Carnley,  188. 
Bruce  v.  Cloutman,  433,  453. 
Bruce  v.  Coleman,  128,  678. 
Bruce  v.  Conyers,  14, 
Bruce  v.  Cook,  121,  360. 
Bruce  v.  Holden,  213,  427,' 
Bruce  t.  Petteugill,  232,  395. 
Bruce  v.  Stewart,  425. 
Bruce  v.  Vogel,  543. 
Bruhn  v.  Jefferson  Bank,  433,  444. 
Bruley  v.  Seaman,  122. 
Brumback  v.  Weinstein,  77. 
Brumby  v.  Barnard,  518,  519. 
Brumgard  v.  Anderson,  485. 
Brummel  v.  Hurt,  590. 
Brumwell  v.  Stebbins,  277. 
Brundred  v.  Del  Hoyo,  28. 
Brunott  v.  McKee,  661, 
Brunswick  v.  Mims,  36. 
Brush  V.  Scribner,  200. 
Brusie  v.  Gates,  239. 
Bryan  v.  Dean,  630,  633. 
Bryan  v.  Duncan,  628. 
Bryan  v.  Dunseth,  25. 
Bryan  v.  Hitchcock,  581 
Bryan  v.  Kelly,  498. 
Bryan  v.  Lashley,  16. 


TABLE   OF   CASES. 


XXlll 


Tlie  references  are  to  pages. 


Bryan  v.  Ponder,  363. 

Bryan  v.  Smith,  443. 

Bryan  v.  Trout,  307,  227,  235. 

Bryant  v.  Allen,  7. 

Bryant  v.  Fussel,  31. 

Bryant  v.  Hendee,  143,  147,  462. 

Bryant  v.  Osgood,  313,  231,  233. 

Bryant  v,  Simoneau,  54. 

Buchanan  v.  Alexander,  389,  308. 

Buchanan  v.  Sterling,  109,  434. 

Buchanan  Co.  Bank  v.  Cedar  Eapids, 

etc.,  335. 
Buck  V.  Colbath,  663. 
Buck  V.  Ingersoll,  13,  14. 
Buck  V.  Panabaker,  479. 
Buckey  v.  Phenice,  651. 
Buckhardt  v.  McClellan,  206,  232. 
Buckhurst  v.  Clinkard,  619. 
Buckingham  v.  Osborne,  16,  153. 
Buckingham  v.  Swezy,  5,  185,  581, 

605. 
Buckland  v.  Tonsmire,  505. 
Buckler  v.  Van  Diver,  696. 
Buckley  v.  Eckert,  289. 
Buckley  v.  Furniss,  195. 
Buckley  v.  Lowry,  3, 16, 121,  433,  443. 
Bucklin  v.  Crampton,  313,  227. 
Bucklin  v.  Powell,  322. 
Buckmaster  v.  Smith,  189. 
Buck-Eenier  v.  Merrill,  238,  269. 
Bucks  V.  Moore,  485. 
Budd  V.  Hiler,  76. 
Buddig  V.  Simpson,  256. 
Buddington  v.  Stewart,  186. 
Budsong  V.  Sledge,  476. 
Buehler  v.  De  Lemos,  89,  249. 
Buell  V.  Van  Kamp,  37,  87,  99,  486. 
Buffam  V.  Seaver,  468. 
Bufflmm  V.  Racine,  313,  316. 
Buffington  v.  Gerrish,  580. 
Buford  V.  Shannon,  198. 
Buford,  etc.  v.  McWhorter,  42. 
Buhl  V.  Ball,  91. 

Buice  V.  Lowman,  etc.,  Co.,  463. 
Buice  V.  Mining  Co.,  5. 
Building  Ass'n  v.  King,  573. 
Bulfinch  V.  Winchenbach,  277,  552. 
Bulkley  v.  Eckert,  314. 


Bullard  v.  Hicks,  369. 

Bullard  v.  Wait,  191. 

Bullene  v.  Hiatt.  504. 

Bullene  v.  Smitli,  53,  144* 

Buller  V.  Woods,  211,  22a 

Bullitt  V.  Winston,  240. 

Bullock  V.  Ferguson,  698. 

Bumberger  v.  Gerson,  45. 

Bump  V.  Betts,  691. 

Bump  V.  Dehany,  99. 

Bunce  v.  Reed,  253. 

Bundrem  v.  Denn,  4,  5,  16,  434,  473, 

487. 
Bunker  v.  Gilmore,  372. 
Bunn  V.  Pritchard,  113,  113. 
Bunn  V.  Thompson,  583. 
Bunneman  v.  Wagner,  490,  523,  529. 
Bunt  V.  Rheum,  12,  674. 
Bunting  v.  Salz,  683. 
Burcalow  v.  Trump,  25,  81. 
Burch  V.  W^atts,  467. 
Burgen  v.  Shaver,  680. 
Burger  v.  Burger,  266.  300. 
Burgert  v.  Borchert,  51. 
Burgess  v.  Atkins,  618. 
Burgess  v.  Capes,  271. 
Burgess  v.  Clark,  32,  350. 
Burgess  v.  Seligman,  437. 
Burgess  v.  Stilt,  110. 
Burk  V.  Barnard,  583. 
Burk  V.  Webb,  404,  406. 
Burke  v.  Hance,  374,  506,  631. 
Burke  v.  Hollis,  190. 
Burke  v.  Johnson,  193. 
Burke  v.  Whitcomb,  372. 
Burkhardt  v.  McClellan,  55a 
Burkhart  v.  Jennings.  689. 
Burleson  v.  Milan,  288,  292. 
Burlingame  v.  Bell,  190,  285,  410,  412. 
Burlington,    etc.,   Co.  v.  Thompson, 

262,  334,  509,  511. 
Burlington,   etc.,  R.   Co.  v.  Lumber 

Co.,  650. 
Burlock  V.  Cross,  43. 
Burlock  V.  Taylor,  297. 
Burnam  v.  Romans,  122,  544, 
Burnap  v.  Campbell,  645. 
Burne  v.  Gardner,  128. 


XXIV 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Burnell  v.  Hunt,  183. 

Burnell  v.  Robei-tson,  16. 

Burnett  v.  McCluey,  27,  91,  117, 125. 

Burnham  v.  Beal,  259. 

Burnham  v.  Doolittle,  268. 

Burnham  v.  Fond  du  Lac,  289,  312, 

316. 
Burnham  v.  Hopkinson,  339. 
Burnside  v.  Davis,  81. 
Burnside  v.  McKiuley,  257. 
Burr  V.  Mathers,  297. 
Burrell  v.  Letson,  191,  256,  287. 
Burroughs  v.  Wriglit,  190,  285. 
Burrows  v.  Glover,  297. 
Burrows  v.  Miller,  27. 
Burrows  v.  Stoddard,  547. 
Burrus  v.  Moore,  382. 
Burruss  v.  Trant,  42,  485. 
Burt  v.  Parish,  470. 
Burt  V.  Reilly,  380. 
Burton  v.  District  Township,  307. 
Burton  v.  Knapp,  689. 
Burton  v.  Robinson,  112. 
Burton  v.  Smith,  696. 
Burton  v.  Wilkinson,  218. 
Burton  v.  Wynne,  82,  380,  346. 
Burton  &  Watson,  Matter  of,  573. 
Bury  V.  Conklin,  462. 
Busbin  v.  Ware,  487. 
Buschman  v.  Hanna,  5,  509. 
Bush  V.  Downing,  462. 
Bush  V.  Bush,  461. 
Bush  V.  Nance,  570. 
Bushel  v.  Commonwealth  Ins.   Co., 

318. 
Bushey  v.  Raths,  456. 
Bushuell  V.  Allen,  357,  359,  376,  623, 

627. 
Bushnell  v.  Com.  Ins.  Co.,  24. 
Bussey  v.  Leavitt,  253. 
Bussey  v.  Rothschild,  124. 
Buswell  V.  Davis,  467. 
Butler  V.  Borders,  224. 
Butler  V.  Kelsey,  162. 
Butler  V.  Mullen,  872. 
Butler  V.  Wagner,  421. 
Butler  V.  White,  427,  434,  640. 
Butler  Paper  Co.  v.  Printing  Co.,  73. 


Butt  V.  Green,  499. 
Butterfield  v.  Baker,  496. 
Butterfield  v.  Clemence,  895. 
Button  V.  Trader,  649. 
Butts  V.  Peacock,  51. 
Buzzell  V.  Hardy,  498,  501,  504. 
Byars  v.  Griffin,  298. 
Byers  v.  Bi-annon,  162,  249. 
Byers  v.  Byers,  495. 
Byers  v.  McClanahan.  515. 
Byersdorf  v.  Sump,  691. 
Byford  v.  Girton,  696. 
Byles  V.  Rowe,  98. 
By  ran  v.  Lash  ley,  887. 
Byrd  v.  Hopkins,  227. 
Byrne  v.  Roberts,  60. 

c, 

Cabeen  v.  Douglass,  235. 

Cabell  V.  Hamilton,  etc.,  Co.,  178. 

Cable  V.  Ellis,  78. 

Cackley  v.  Smith,  247. 

Cadwalader  v.  Hartley,  281. 

Cad  well  v.  Colgate,  121. 

Cad  well  v.  Corey,  60,  676. 

Cady  V.  Comey,  292. 

Caffrey  v.  Dudgeon,  128. 

Cahoon  v.  Ellis,  383. 

Cahoon  v.  Morgan,  851. 

Caignett  v.  Gil  band,  276. 

Cain  V.  Mather,  63. 

Cain  V.  Rockwell,  64. 

Cain  V.  Simpson,  447. 

Cairo,  etc.,  R.   Co.  v.  Hind  man,  2V2, 

625. 
Cairo,  etc.,  R.   R.  v.  Killenberg,  257, 

272,  298,  371,  382,  885,  625. 
Cal.  Academy  of  Sciences  v.  Fletcher, 

639. 
Calahan  v.  Babcock,  198. 
Caldwell  v.  Arnold,  170,  222. 
Caldwell  v.  Barclay,  36. 
Caldwell  v.  Coates,  271,  884. 
Caldwell  v.  Colgate,  16,  490,  529. 
Caldwell  v.  Haley,  60. 
Caldwell  v.  Silver,  884. 
Caldwell  v.  Stewart,  339. 


TABLE    OF   CASES. 


XXV 


The  references  are  to  pages. 


Caldwell  v.  Townsend,  623. 
Caldwell  v.  Truesdale,  495. 
Calhoun  v.  Cozzens,  472. 
Calhoun  v.  Hannan,  485,  686. 
Calhoun  v.  Stout,  613. 
Calhoun  v.  Ware,  284,  432,  434 
Calk  V.  Chiles.  121. 
Callaghan  v.   Pocasset  Manuf.   Co., 

316. 
Callahan  v.  Hallowell,  318,  463. 
Callan  v.  Statham,  306. 
Callen  v.  Ellison,  441. 
Callender  v.  Duncan,  134,  470. 
Callonder  v.  Furbish,  268. 
Calson  V.  Wilson,  497. 
Camberford  v.  Hall,  40,  130. 
Cambridge  v.  Charlestown,  28. 
Camden  v.  Allen,  373. 
Cameron  v.  Stollenwei'k,  647. 
Cam  mack  v.  Floyd,  299. 
Cammann  v.  Tompkins,  484. 
Camp  V.  Cahn,  14. 
Camp  V.  Chamberlain,  224. 
Camp  V.  Clark,  306. 
Camp  V.  Schuster,  621. 
Camp  V.  Tibbets,  97. 
Camp  V.  Wood,  443. 
Campau  v.  Traub,  362. 
Campbell   v.   Chamberlain,    12,   673, 

681,  684,  695. 
Campbell  v.  Day,  302. 
Campbell  v.  Gould,  499. 
Campbell  v.  Hall,  92,  93, 124 
Campbell  v.  Hopkins,  691. 
Campbell  v.  Jackson,  42. 
Campbell  v.  McCahan,  442,  445. 
Campbell  v.  Moore.  586. 
Campbell  v.  ]Morris,  431,  483. 
Campbell  v.  Nesbitt,  377,  645. 
Campbell  v.  Ruger,  554. 
Campbell  v.  Warner,  53,  54. 
Campbell  v.  Whetstone,  481. 
Campion,  etc.,  Co.  v.  Searing,  57. 
Canada  v.  Southwick,  657. 
Canaday  v.  Detrick,  377,  569,  645,  654. 
Canadian,  etc.,  Co.  v.  Kyser,  495. 
Canal  Co.  v.  Insurance  Co.,  298. 
Canda  v.  Powers,  581. 


Candee  v.  Skinner,  634. 

Candee  v.  Webster.  634. 

Can  field  v.  Hard,  605. 

Canfield  v.  McLaughlin,  13. 

Canfield  v.  Monger,  501. 

Cannon  v.  Dunlap,  513, 

Cannon  v.  Logan,  107. 

Cannon  v.  McManus,  483. 

Cannon  v.  Wood,  442. 

Canova  v.  Colby,  485. 

Cape  Girardeau  v.  Renfroe,  578. 

Capehart  v.  Dowery,  86,  467. 

Capen  v.  Duggan,  258.  293. 

Capen  v.  Peckham,  189. 

Capes  V.  Burgess,  271. 

Capital  City  Bank  v.  Parent,  72,  210. 

Capital  City  Bank  v.  Wakefield,  386. 

630. 
Carbee  v.  Mason,  280. 
Cardany  v.  Furniture  Co.,  625. 
Garden  v.  Garden,  36. 
Carey  v.  Brinton,  640. 
Carey  v.  Gregg,  10. 
Carey  v.  Gunnison,  12,  674,  692. 
Carey  v.  State,  661. 
Cariker  v.  Anderson,  433,  443. 
Garland  v.  Cunningham,  70. 
Carleton  v.  Ryerson,  206,  232, 
Carleton  v.  Washington  Ins.  Co.,  253, 

402,  424,  433.  451. 
Carlin  v.  Ritter,  190. 
Carlisle  v.  Cowan,  33. 
Carlisle  v.  Gunn,  82. 
Carlos  V.  Alvord,  271. 
Carlton  v.  Davis,  222. 
Carmack  v.  Commonwealth,  661. 
Carney  v,  Emmons,  586. 
Carothers  v.  McIIhcnny,  689. 
Carpenter  v.  Bodkin,  341. 
Carpenter  v.  Central  Park,  etc.,  R.  R 

Co.,  461. 
Carpenter  v.    Dresser,  188,  223,  225, 

685. 
Carpenter  v.  First  N.  Bank,  488. 
Carpenter  v.  Gay,  365. 
Carpenter  v.  Pridgen,  105. 
Carpenter  v.  Scott,  170. 
Carpenter  v.  Stevenson,  680. 


XXVI 


TABLE    OF    CASES. 


Tlie  references  are  to  pages. 


Carpenter  v.  Turrell,  527. 

Carr  v.  Coopwood,  477. 

Carr  v.  Farley,  396,  405. 

Carr  v.  Van  Hoesen,  123,  433,  571. 

Carr  v.  Waugh,  298. 

Carrington  v.  Smith,  427. 

Carrique  v.  Sidebottoni,  360. 

Carroll  v.  Carroll's  Lessee,  438. 

Carroll  v.  McDonough,  643. 

Carroll  v.  Miller,  329. 

Carroll  v.  Milner,  625. 

Carroll  v.  Parkes,  644. 

Carroll  v.  Smith,  437. 

Carroll  v.  Tinley,  383. 

Carroll  County  Bank  v.  Goodall,  159. 

Carson  v.  Carson,  180. 

Carson  v.  Railway  Co.,  511. 

Carter  v.  Bush,  379. 

Carter  v.  Carter,  503. 

Carter  v.  Champion,  10,  206,  505,  563, 

563. 
Carter  v.  Fenstemaker,  268,  269. 
Carter  v.  Gregory,  540. 
Carter  v.  Jar  vis,  186. 
Carter  v.  Koshland.  233,  627. 
Carter  v.  Rewey,  268. 
Carter  v.  Webster,  373. 
Carter  v.  Willard^  197. 
Caruth,  etc.  v.  Deere,  547. 
Cartwright  v.  Bamberger,  77,  619. 
Cartwright  v.  Chabert,  165,  166. 
Carver  v.  Chapell,  45. 
Carver  V.  Shelley,  12,  675. 
Cary  v.  Gregg,  544. 
Cary  Lumber  Co.  v.  Cain,  576. 
Case  V.  Beauregard,  305. 
Case  V.  Haughton,  302. 
Case  V.  Moore,  623,  624. 
Case  V.  Noyes,  257,  339,  347. 
Case,  etc.,  Co.  v.  Miracle,  292. 
Casey  v.  Adams,  426. 
Casey  v.  Davis,  259,  289,  653. 
Casner's  Adm'r  v.  Smith,  15. 
Cason  V.  Cason,  444. 
Casson  v.  La.  State  Bank,  534 
Catlin  v.  Gladding,  38. 
Catlin  V.  Rickets,  153,  461. 
Cato  V.  Thompson,  594. 


Caton  V.  Rupert,  245. 

Caulfield  v.  Bittinger,  73. 

Cawker,  etc..  Bank  v.  Jennings,  63. 

Cavvthorne  v.  McGraw,  220. 

Cecil  V.  Rose,  72. 

Cedar  Hill,  etc.,  Mining  Co.  v.  Jacob 

Little,  etc..  Mining  Co.,  456. 
Center  v.  McQuesten,  259,  274,  300. 
Central  Bank  v.  Prentice,  268. 
Central  City  Bank  v.  Parent,  421. 
Central,  etc.,  Co.  v.  Construction  Co., 

87. 
Central,  etc.,  R  Co.  v.  Carr,  453. 
Central  Mills  Co.  v.  Stewart,  523, 524. 
Central  R  Co.  v.  Georgia,  etc.,  Co., 

87. 
Central  R  &  B.  Co.  v.  Georgia,  etc., 

Co.,  575. 
Cerf  V.  Oaks,  194. 
Chadbourn  v.  Gil  man,  280,  368. 
Chadbourne  v.  Sumner,  213,  433,467. 
Chafee  v.  Fourth  National  Bank,  182. 
Chafee  v.  Quidnick,  407. 
Chaffe  V.  Mackenzie,  52,  681. 
Chaffee  v.  Rutland  R  Co.,  331. 
Chaine  v.  Wilson,  25. 
Chamberford  v.  Hall,  311. 
Chamberlain  v.  Beller,  175. 
Chamberlain  v.  Dempsey,  252. 
Chamberlain  v.  Faris,  4,  426,  434 
Chamberlin  v.  Gilman,  302. 
Chambers  v.  McKee,  377. 
Chambers  v.  Sloan,  92. 
Chambers  v.  Yarnell,  62,  125. 
Champion  Machine  Co.  v.  Updike, 

485. 
Chandler  v.  Bailey,  578. 
Chandler  v.  Dyer,  206. 
Chandler  v.  Faulkner,  645. 
Chandler  v.  Nash,  442,  466. 
Chandler  v.  Thurston,  189. 
Chapin  v.  Ct.  R.  R  Co.,  259. 
Chapin  v.  Jackson,  268. 
Chapman  v.  Briggs,  187. 
Chapman  v.  City  of  Brooklyn,  595. 
Chapman  v.  Clough,  13. 
Chapman  v.  Foster,  187. 
Chapman  v.  Mears,  267. 


TABLE    OF   CASES. 


XXVll 


The  references  are  to  pages. 


Chapman  v.  Morgan,  659, 

Chapman  v.  Pittsburg,  etc.,  R  Co.,  78. 

Chapman  v.  Railway  Co.,  86. 

Chapman  v.  Searle,  197. 

Chapman  v.  Smith,  657. 

Chapman  v.  Stuckey,  116. 

Chapman  v.  Williams,  260 

Chappel  V.  Chappel,  585. 

Chariton  County  v.  Moberly,  23. 

Charles  v.  Haskins,  661. 

Charles  City,  etc.,  Co.  v.  Jones,  244. 

Charnock  v.  Colfax,  403,  427,  434. 

Chase  v.  Currier.  295. 

Chase  v.  Elkius,  180. 

Chase  v.  Foster,  469. 

Chase  v.  Hill,  236. 

Chase  v.  Manhardt,  633. 

Chase  v.  Ninth  Nat  Bank,  26. 

Chase  v.  North,  383. 

Chase  v.  Thompson,  293. 

Chatroop  v.  Borgard,  257. 

Chattahoochee  Brick  Co.  v.  Sullivan, 
65. 

Cheadle  v.  Riddle,  110. 

Chealy  v.  Brewer,  285,  287,  311,  313. 

Cheatham  v.  Carrington,  31. 

Cheatham  v.  Hawkins,  50. 

Cheatham  v.  Trotter,  4. 

Cheely  v.  Clayton,  603. 

Chenault  v.  Chapron,  689. 

Cheney  v.  Straube,  70. 

Cheny  v.  Nelson,  472. 

Clieongwo  v.  Jones,  647. 

Cherry  v.  Hooper,  262. 

Chesapeake,  etc.,  Co.  v.  Sparks,  256, 
268. 

Chesapeake  Guano  Co.  v.  Sparks, 
268. 

Chesapeake  R.  R  Co.  v.  Paine,  330. 

Cheshire  N.  Bank  v.  Jewett,  210. 

Chesley  v.  Coombs,  372. 

Chesney  v.  Francisco,  25,  27. 

Chewing  v.  Johnson,  195. 

Chicago  V.  Robbins,  438. 

Chicago  &  Alton  R.  R  Co.  v.  Rag- 
land,  627. 

Chicago,  etc.  v.  Mason,  320,  376,  506, 
630. 


Chicago,  etc.  v.  ]\Ieyer,  375,  505. 
Chicago,  etc.,  R.  Co.  v.  Moore,  506. 
Chicago,  etc.,  R.  R  Co.  v.  Blogden, 

365.  509. 
Chicago,  etc.,  R.  R   Co.  v.  Ragland, 

501,  508. 
Chilcote  V.  Couley,  506. 
Childress  v.  Dickens,  273. 
Childress  v.  Fowler,  490,  491,  522. 
Childs  V.  Barrows,  242. 
Childs  V.  Digby,  270,  334. 
Childs  V.  Ham,  233,  241,  395. 
Chilson  V.  Reeves,  501. 
Chipella  v.  Launsse,  534. 
Chipman  v.  McKinnej-,  504. 
Chipman,  Matter  of,  32. 
Chipman's  Case,  184. 
Chisholm,  In  re,  299. 
Chisman  v.  Dorsey,  394 
Chittenden's  Case,  441. 
Choate  v.  Blackford,  365. 
Choate  v.  Mcllhenny,  560. 
Choppin  V.  Wilson,  619. 
Chrisman  v,  Rogers,  530. 
Christal  v.  Kelly,  461,  530. 
Christian  v.  Seeligson,  691. 
Christmas  v.  Biddle,  329,  334,  503. 
Christmas  v.  Russell,  449. 
Christy  v.  Pridgeon,  438. 
Chubbuck  v.  Cleveland,  220. 
Church  V.  Campbell,  144. 
Church  V.  Ci'ossman,  456. 
Church  V.  Furniss,  112. 
Church  V.  Holcomb,  494 
Church  V.  Knox,  275. 
Church  V.  Phillips,  76. 
Church  V.  Simpson,  383. 
Churchill    v.    Abraham,     678,     680, 

688. 
Churchill  v.  Fulliam,  132,  138,  143. 
Churchill  v.  Goldsmith,  3. 
Churchill  v.  Hill,  120. 
Churchill  v.  Palmer,  596. 
Cilley  V.  Jenuess,  657. 
Cincinnati  v.  Bickett,  250. 
Citizens'  Bank  v.  Farwell,  338,  437. 
Citizens'  Bank  v.  Hancock,  60. 
Citizens'  Bank  v.  Jenks,  191. 


XXVlll 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Citizens'  Bank  v.    Studebaker  Man. 

Co.,  259. 
Citizens'  Bank  v.  Williams,  94. 
City  Bank  v.  Cupp,  397. 
City  Bank  v.  Flippen,  109. 
City  Bank  v.  Merritt,  25,  38,  488,  485. 
City  Bank  v.  Phillips,  58. 
City  Bank  of  New  Orleans  v.  Mcln- 

tyre,  534, 
City  of  Alton  v.  Kiiscli,  458. 
City  of  Charleston  v,  Blohme,  594. 
City  of  Chicago  v.  Gage,  516. 
City  of  Chicago  v.  Halsey,  316. 
City  of  Chicago  v.  Hastings,  313. 
City  of  Chicago  v.  Rock  Island  R.  R. 

Co.,  442. 
City  of  Dallas  v.  Western   Electric 

Co.,  318. 
City  of  Denver  v.  Brown,  317. 
City  of  Erie  v.  Kuapp,  316. 
City  of  Lowell  v.  Parker,  661. 
City  of  Nashville  v.  Wilson,  151. 
City  of  Newark  v.  Funk,  317. 
City  of  New  Orleans  v.  Finnerty,  313. 
City  N.  Bank  v.  Cupp,  477. 
City  National  Bank  v.  Jeffries.  686. 
Claflin  V,  Baere,  98,  490. 
Claflin  V.  Furstenheim,  314,  543. 
Claflin  V.  Hoover,  81,  483. 
Claflin  V.  Iowa  City,  319,  336. 
Claflin  V.  Landecker,  307. 
Claflin  V.  Lisso,  473. 
Claflin  V.  Rodenberg,  51. 
Claflin  V.  Steeubock,  15. 
Claflin  Co.  v.  Feibleman,  73. 
Clagett  V.  Kilbourue.  183,  198. 
Clanton  v.  Laird,  160,  343. 
Clapp  V.  Beardsley,  443. 
'  Clapp  V.  Bell,  11,  6l4. 
Clapp  V.  Davis,  318. 
Clapp  V.  Graves,  153. 
Clapp  V.  Hancock,  303. 
Clapp  V.  Rogers,  307,  646. 
Clapp  V.  Thomas,  497,  501. 
Clark  V.  Arnold,  30,  34. 
Clark  V.  Averill,  506. 
Clark  V.  Blackwell,  586. 
Clark  V.  Boggs,  389,  290, 


Clark  V.  Brewer,  334. 

Clark  V.  Brott,  9,  12,  16,  353,  433,  559, 

681. 
Clark  V.  Bryan,  438,  433,  437,  445. 
Clark  V.  Callaghan,  7, 
Clark  V.  Chapman,  319,  336. 
Clark  V.  Cilley,  300. 
Clark  V.  Clark,  260. 
Clark  V.  Commissioners,  314 
Clark  V.  Dean,  655. 
Clark  V.  Few,  304. 
Clark  V.  Foxcroft,  467. 
Clark  V.  Foxworthy,  640,  644. 
Clark  V.  Gamwell,  406. 
Clark  V.  Gardner  &  Trustee,  557. 
Clark  V.  Garther,  131. 
Clark  V.  Gibson.  273. 
Clark  V.  Great  Barrington,  643. 
Clark  V.  Gresham,  636,  637. 
Clark  V.  Halliday,  424. 
Clark  V.  Hellen,  154,  165. 
Clark  V.  Holmes,  254,  428, 
Clark  V.  Ingraham,  43,  45,  507. 
Clark  V.  King,  301,  331. 
Clark  V.  Lamoreaux,  55,  488. 
Clark  V.  Lassen  Co.  Court,  444. 
Clark  V.  Miller,  61,  101,  109. 
Clark  V.  Montfort,  473. 
Clark  V.  Morse.  81. 
Clark  V.  N.  J.  Steam  Nav.  Co.,  440. 
Clark  V.  Powell,  632. 
Clark  V.  Pratt.  36. 
Clark  V.  Raymond,  580. 
Clark  V.  Roberts,  131,  133,  475. 
Clark  V.  Shaw,  287,  388. 
Clark  V,  Skinner,  667. 
Clark  V.  Smith,  53. 
Clark  V.  Thompson,  433,  442, 443, 445. 
Clark  V.  Viles,  199. 
Clark  V.  Ward,  35. 
Clark  V.  Wilson,  318,  48S. 
Clark,  Matter  of,  349,  353,  445. 
Clarke  v.  Farnuni,  339. 
Clarke  v.  Likens,  35,  38. 
Clarke  v.  Meixsell,  360,  469,  648. 
Clarke  v.  Pratt,  37. 
Clarke  v.  Seatou,  47. 
Clarke  Banking  Co.  v.  Wright,  113. 


TADLE   OF   CASES. 


XXIX 


Tlie  references  are  to  pages. 


Clary  v.  Haines,  519,  520. 
Classon  v.  Morrison,  241,  296. 
Claussen  v.  Easterling,  482. 
Claussen  v.  Fultz.  IG,  93,  94,  434. 
Clay  V.  Leather  Co.,  129. 
Clay  V.  Neilson,  228,  229,  244,  479. 
Clay  V.  Scott  554. 
Clayburg  v.  Ford,  115. 
Claypole  v.  Houston,  122. 
Cleland  v.  Tavernier,  3. 
Clement  v.  Clement,  272. 
Clement  v.  Hughes,  682. 
Clements  v.  Cassily,  526. 
/  Clements  v.  Lacey,  504. 
Cleneay  v.  The  Junction  R  R.  Co., 

353. 
Clerk  T.  Averill,  494. 
Cleveland  v.  Boden,  94,  106. 
Cleveland  v.  Rogers,  443. 
Cleveland  v.  Tufts,  683. 
Cleverly  v.  Brackett,  13. 
Climer  v.  Russell,  667. 
Clingman  v.  Kemp,  495. 
Clinton  v.  Estes,  575. 
Clinton  N.  Bank  v.  Bright,  365. 
Clodfelter  v.  Cox,  275,  301,  302. 
Close  V.  St.  Clair,  498,  502. 
Clough  V.  Buck,  280,  623,  628. 
Clough  V.  Curtis,  548. 
Clowser  v.  Hall,  98. 
Clure  V.  Smith,  240. 
Clymore  v.  Williams,  4,  191,  238,  285, 

287,  422,  426,  432,  447. 
Coarts  V.  Georgia,  166. 
Coates  V.  Roberts,  645. 
Cobb  V.  Bishop,  271. 
Cobb  V.  Force,  94, 
Cobb  V.  Gage,  220. 
Cobb  V.  Spieth,  180. 
Coble  V.  Nonemaker,  260,  307. 
Coburn  v.  Ansart,  274,  291. 
Coburn  v.  Currens,  645. 
Coburn  v.  Hartford,  272. 
Cochnovver  v.  Cochnower,  357. 
Cochran  v.  Fitch,  645. 
Cochrane  v.  Johnson,  234,  245. 
Cochrane  v.  Quackenbush,   12,   128, 

677. 


Cochrane  v.  Rich,  566. 

Cockburn  v.  Watklns,  85. 

Cockey  v.  Leister,  289. 

Cockey  v.  Melne,  12,  586. 

Cockfield  V.  Tourres,  365. 

Cockrell  v.  McGraw,  466,  469. 

Cocks  V.  Varney,  545. 

Coda  V.  Thompson,  5,  338. 

Codington  v.  Gilbert,  202. 

Codman  v.  Freeman,  565. 

Coe  V.  Rocha,  625. 

Coe  V.  Wilson,  189. 

Coffin  V.  Ray,  397,  498,  562,  579,  610, 

616. 
Coffin  V.  Still,  25. 
Coffin  v.  Stitt,  29. 
Coffman  v.  Brandhoefer,  149. 
Coflfrin  v.  Smith,  546. 
Cofrode  v.  Circuit  Judge,  282. 
Coggswell  V.  Wilson,  394. 
Cohen  v.  Burr,  120. 
Cohen  v.  Gamble,  184 
Cohen  v.  Insurance  Co.,  632. 
Cohen  v.  Manco,  80,  82. 
Cohen  v.  Smith,  158. 
Cohen  v.  Trowbridge,  247,  461. 
Cohens  v.  Virginia,  438. 
Cohn  V.  Hoffman,  502, 
Colin  V.  Justice,  405. 
Cohn  V.  Tillman,  365. 
Colby  V.  Coates,  289,  314 
Colby  V.  Gould,  485. 
Colcord  V.  Daggett,  279. 
Coldwell  V.  Porcher,  498. 
Cole  V.  Aune,  57. 
Cole  V.  Cunningham,  509. 
Cole  V.  Dugger,  244. 
Cole  V.  Favorite,  501. 
Cole  V.  Flitcraft  645. 
Cole  V.  Hocha,  234. 
Cole  V.  Smith,  673. 
Cole  V.  Wooster,  289,  290,  550,  552. 
Coleman's  Appeal,  3,  426,  433. 
Coleman  v.  Bean,  492,  527,  529. 
Coleman  v.  Hatcher,  263. 
Coleman  v.  Waters,  607. 
Collier  v.  Falk,  460. 
Collier  v.  ITanna,  31,  42,  183. 


XXX 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Collins  V.  Burns,  527. 

Collins  V.  Chase,  182. 

Collins  V.  Duffy,  622. 

Collins  V.  Friend,  623. 

Collins  V.  Jennings,  646. 

Collins  V.  Mitchell,  513. 

Collins  V.  Perkins,  399. 

Collins  V.  Rose,  461. 

Collins  V.  Shannon,  691. 

Collins  V.  Smith,  396. 

Collins  Granite  Co.  v.  Devereux,  14. 

Colman  v.  Scott,  300,  301,  372. 

Colorado  v.  Pierson,  39. 

Colorado  Bank  v.  Lester,  523. 

Colson  V.  Wilson,  499,  581. 

Colston  V.  Berends,  251. 

Colt  V.  Ives,  16,  300. 

Columbia  Bank  v.  Ingersoll,  211,  303. 

Columbia  Bank  v.  Spring,  182. 

Columbus  V.  Dunnick,  316. 

Columbus  Ins.  Co.  v.  Eaton,  332. 

Columbus  Ins.  Co.  v.  Hirsh,  365. 

Colvin  V.  Rich,  372. 

Col  well  V.  Bank  of  Steuben  ville,  252. 

Comer  v.  Reid,  3,  700. 

Commerce  Bank  v.  Huntington,  284. 

Commercial  Bank  v.  Chicago,  etc.,  R. 
Co.,  323,  508. 

Commercial  Bank  v.  McLeod,  296. 

Commercial  Bank  v.  Neally,  292. 

Commercial  Bank  v,  UUman,  92,  107, 
108,  125. 

Commercial  N.  Bank  v.  Chicago,  etc., 
511. 

Commercial  N,  Bank  v.  Farmers', 
etc.,  Bank,  329. 

Commissioners  v.  Bond,  812. 

Commissioners  v.  Thompson,  443. 

(Commissioners  v.  Watts,  595. 

Commonwealth  v.  Brigham,  210. 

Commonwealth  v.  Greene,  451. 

Commonwealth  v.  Intoxicating  Liq- 
uors, 669. 

Commonwealth  v.  Manley,  203. 

Commonwealth  v.  Matthews,  669. 

Common wealtli  v.  Morse,  399. 

Commonwealth  v.  Stockton,  225. 

Comparet  v.  Ilanna,  501. 


Compress  v.  Mitchell,  64. 
Comstock  V.  Crawford,  441. 
Comstock  V.  Farnham,  653. 
Comstock  V.  Paie,  361. 
Conant  v.  Bicknell,  191,  285,  288. 
Conant  v.  Burns,  636. 
Concullu  V.  Insurance  Co.,  329. 
Congar  v.  Galena,  etc.,  443. 
Congdon  v.  Cooper,  395,  405. 
Conklin  v.  Couklin,  682. 
Couklin  V.  Butcher,  131.  465. 
Couklin  V.  Goldsmith,  138. 
Conklin  v.  Harris,  148,  184,  476. 
Conley  v.  Chilcote,  252,  503. 
Conly  V.  Wood,  690. 
Connell  v.  Scott,  213. 
Connelly  v.  Harrison,  300. 
Connelly  v.  Lerche,  5. 
Connelly  v.  Woods,  170. 
Conner  v.  Commissioners  of  Rice  Co., 

485. 
Conner  v.  Long,  221,  650. 
Connolley  v.  Chesebro,  258,  625. 
Connolly  v,  Edgerton,  235. 
Connolly  v.  Thurber,  296. 
Connor  v.  Follansbee,  51. 
Connor  v.  Pope,  5,  263,  353,  453. 
Connor  v.  Third  N.  Bank,  320. 
Conover  v.  Becket,  600. 
Conover  v.  Ruckman,  285,  290. 
Conrad  v.  Fisher,  689. 
Conrad  v.  McGee,  107,  122. 
Conrad  v.  Prieur,  534. 
Construction  Co.  v.  Seymour,  66. 
Continental  N.  Bank  v.  Draper,  51. 
Conturie  v.  Hastie,  592. 
Conway  v.  Armington,  292,  294. 
Conway  v.  Ionia  Judge,  263. 
Conwell  V.  Conwell,  605. 
Conwell  V.  Thompson,  4 
Cook  V.  Boyd,  523. 
Cook  V.  Dillon,  265. 
Cook  V.  Farren,  253. 
Cook  V.  Field,  645. 
Cook  V.  Hallett,  330. 
Cook  V.  Hopper,  170. 
Cook  V.  Jenkins.  83. 
Cook  V.  Love, -607. 


TABLE   OF   CASES. 


XXXI 


The  references  are  to  pages. 


Cook  V.  New  York,  etc.,  Co.,  114 

Cook  V.  Pollard,  539. 

Cook  V.  Walthall,  271,  318. 

Cook  V.  Whitney,  340. 

Cooke  V.  Appleton,  25,  29. 

Cooke  V.  Cooke,  10. 

Cooke  V.  State  National  Bank,  24. 

Cooley  V.  Transfer  R.  Co.,  325. 

Coolidge  V.  Wells,  504. 

Coone  V.  Braun,  371. 

Cooney  v.  ]\Ioroney,  406. 

Cooney  v.  Whitfield,  99. 

Cooper  V.  Berney  N.  Bank,  407. 

Cooper  V.  Clark,  48. 

Cooper  V,  Cooper,  591,  594. 

Cooper  V.  Hill,  677. 

Cooper  V.  Jerenson,  120. 

Cooper  V.  Johnson,  19. 

Cooper  V.  Mowry,  395,  405. 

Cooper  V.  McClun,  652. 

Cooper  V.  Metzger,  539,  564 

Cooper  V.  Newman,  170,  222,  223. 

Cooper  V.  Peck,  514. 

Cooper  V.  Reeves,  472. 

Cooper  V.  Reynolds,  3,  4  482,  436, 438, 

603. 
Cooper  V.  Smith,  120,  422,  434 
Cooper  V.  Sunderland,  254. 
Cooper  V.  Trederick,  121. 
Coosa  River  St.  Bt.  Co.  v.  Barclay,  36. 
Copeland  v.  Insurance  Co.,  540. 
Copeland  v.  Weld,  199. 
Copp  V.  Williams,  186,  501. 
Corbin  v.  Goddard,  30. 
Corbit  V.  Corbit,  95. 
Corbyn  v.  Bollman,  289. 
Corcoran  v.  Judson,  696,  698. 
Corcoran  v.  Riddell,  234 
Cordaman  v.  Maloue,  517,  656. 
Core  V.  Oil  Land  Co.,  246,  249. 
Corey  v.  Powers,  270. 
Cornelius  v.  Davis,  253,  444. 
Cornell  v.  Dakin,  217,  404 
Cornell  v.  Payne,  302. 
Corner  v.  Mackentosh,  224. 
Cornforth  v.  Maguire,  559,  561. 
Cornish  v.  Russell,  350,  367. 
Cornman's  Appeal,  150. 


Cornwall  v.  Gould,  13. 

Corn  well  v.  Hungate,  377,  654 

Corpenny  v.  Sedalia,  62. 

Corrigan  v.  Nichols,  466. 

Corrothers  v  Sargent,  63. 

Cortelyou  v.  Maben,  519. 

Corthell  v.  Mead,  561. 

Corwin  v.  Merritt,  254,  428. 

Corwith  V.  Bank,  165. 

Cosner  v.  Smith,  89. 

Cosner's  Adm'r  v.  Smith,  83,  114 

Cossitt  v.  Winchell.  474. 

Coston  V.  Paige,  117,  485. 

Cota  V.  Mishovv,  388. 

Cota  V.  Ross,  640. 

Cottle  V.  American  Screw   Co.,   648, 

654. 
Cotton  V.  Huey,  162. 
Cottrell  V.  Varnura,  273,  303. 
Cotzhausen  v.  Judd,  193. 
Coulson  V.  Bank,  198,  681,  682. 
Countess  of  Rutland's  Case,  554 
County  of  Cass  v.  Johnston,  437. 
Courie  v.  Goodwin,  503. 
Courrier  v.  Cleghorn,  121. 
Cousens  v.  Lovejoy,  332. 
Cousins  V.  Al worth,  3,  228,  237,  240. 
Cousins  V.  Brashier,  9,  137,  678. 
Covell  V.  Heyman,  663. 
Covert  V.  Clark.  456.  457,  459. 
Covert  V.  Nelson,  301,  654 
Covington  v.  Cothran,  239. 
Cowan  V.  Lowry,  648. 
Coward  v.  Dillinger,    122,    472,    475, 

479. 
Cowardine  v.  Universal  Life  Ins.  Co., 

322. 
Cowdry  v.  Walker,  350. 
Cowles  V.  Coe,  304. 
Cowley  V,  McLaughlin,  397. 
Cowlon  V.  De  Lisle,  484 
Cox  V.  Dawson,  72,  73. 
Cox  V.  Donnelh',  496. 
Cox  V.  Milner,  495. 
Cox  V.  Reeves,  265. 
Cox  V.  Reinhardt,  74 
Cox  V.  Robinson,  677,  684 
Cox  V.  Waters,  88. 


XXXll 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Cox  Manuf.  Co.  v.  August,  345, 

Coykeadall  v.  Ladd,  263,  322. 

Crabb  v.  Atwood,  253. 

Crabb  y.  Jones,  644. 

Cracken  v.  Harris,  504. 

Craddock  v.  Goodwin,  684. 

Craft  V.  Hubbard,  506. 

Craft  V.  Louisville,  etc.,  Co.,  505. 

Craft  V.  Summersell,  281,  508. 

Crafts  V.  Sykes,  582. 

Craig  V.  Fraser,  428. 

Craig  V.  Herring,  670. 

Craig  V.  Smith,  275. 

Craig  V.  Williams,  78. 

Craigmiles  v.  Hays,  104. 

Crain  v.  Gould,  268,  374. 

Cram  v.  Schackelton,  258. 

Cramer  v.  White,  604. 

Crandall  v.  McKay,  84,  118. 

Crane  v.  Freeze,  191,  285,  288. 

Crane  v.  Kimmer,  443. 

Crary  v.  Barber,  456. 

Cravens  v.  Wilson,  617. 

Crawford  v.  Benton,  568. 

Crawford  v.  Clute,  643. 

Crawford  v.  Foster,  526. 

Crawford  v.  Neal,  306. 

Crawford  v.  Newell,  10,  394. 

Crawford  v.  Nolan,  244,  562. 

Crawford  v.  Roberts,  74,  87,  88. 

Crawford  v.  Plade,  389,  648. 

Crayne  v.  Wells,  95. 

Crfeagh  V.  Delane,  84, 

Creasser  v.  Young,  108,  125. 

Creed  v.  Creed,  369. 

Creighton  v.  Kerr,  16,  421,  422,  433, 

461,  463. 
Crescent  Ins.  Co.  v.  Beer,  275. 
Crescent  Ins.  Co.  v.  Moore,  322. 
Cress  V.  Blodgett,  274. 
Cressy  v.  Katz  Man,  Co.,  413. 
Cribben  v.  Schillenger,  91, 
Crim  V.  Harmon,  15,  85. 
Crippen  v.  Jacobson,  563. 
Crisfield  v.  Neal,  394. 
Crisman  v.  Dorsey,  211. 
Crisman  v.  Matthews,  514 
Crisman  v.  Swisher,  241. 


Crisp  V,  Fort  Wayne,  etc.,  R  Co.,  15, 

363,  507, 
Crittenden  v.  Rogers,  394. 
Crocker  v,  Clements,  187. 
Crocker  v.  Pierce,  498. 
Crocker  v.  Radcliffe,  12,  544. 
Crofiford  v.  Yasser,  692, 
Croghan  v,  Livingston,  147. 
Cromwell  v,  Gallup,  42, 
Crone  v,  Braun,  536,  560. 
Cronin  v.  Foster,  282. 
Cropper  v.  Coburn,  183. 
Crosby  v.  Allyn,  206,  208,  231,  232l 
Crosby  v.  Hetherington,  154» 
Cross  V.  Brown,  394. 
Cross  V.  Elliott,  430. 
Cross  V.  Fombey,  549,  562. 
Cross  V.  Haldeman,  303. 
Cross  V.  McMaken,  90,  92,  123,  125. 
Cross  V.  Phelps,  170. 
Cross  V.  Richards,  631. 
Cross  V.  Spillman,  338,  339,  387. 
Cross  V.  United  States,  250,  428. 
Grossman  v.  Grossman,  363. 
Grossman  v.  Rubber  Co..  500. 
Groswell  v.  Tufts,  622. 
Crouch  V,  Crouch,  114 
Crow  V,  Beardsley,  51. 
Grow  V.  Lemon,  45, 
Crowell  V,  Galloway,  457,  461. 
Crowley  v,  Wallace,  440. 
Crowninshield  v,  Strobel,  12, 171, 544 

620, 
Crownover  v,  Barnburg,  293. 
Ci'owns  V.  Vail,  81, 
Croxall  V.  Hutchins,  98. 
Crozier  v,  Shantz,  303. 
Gruett  V.  Jenkins,  378,  280. 
Grum  V.  Laidlaw,  534. 
Gruyt  V.  Phillips,  529, 
Gudahy  v.  Rinehart,  129,  174 
Gulbertson  v,  Cabeen,  104  105,  689. 
Cullers  V.  City  Bank,  362. 
Culver  V.  Rumsey,  213. 
Gumming  v.  Brown,  601. 
Cummings  v.  Denny.  148,  477. 
Gummiugs  v.  Fearey,  307. 
Cummings  v.  Garvin,  292. 


TABLE    OF    CASES. 


XXXIU 


The  references  are  to  pages 


Cummings  v.  Tabor,  245,  246,  354. 

Cuniniings  v.  Voice,  72. 

Cummins  v.  Tovey,  562. 

Cunningham  v.  Butler,  509. 

Cunningham  v.  Goelet,  464. 

Cunningham  v.  Gushee,  546. 

Cunningham  v.  Hogan,  526,  586. 

Cunningham  v.  Jacobs,  128. 

Cunningham  v.  Lamar,  138,  142, 

Cunningliam  v.  Pac.  R.  R.  Co.,  441. 

Cuny  V.  The  National  Bank  of  Au- 
gusta, 374,  384,  636. 

Cureton  v.  Dargan,  236,  465. 

Curiae  v.  Packard,  515. 

Curie  V.  Insurance  Co.,  298. 

Curling  v.  Hyde,  205,  292. 

Currens  v.  Ratcliffe,  237,  487. 

Curry  v.  The  National  Bank  of  Au- 
gusta. 356. 

Curry  v.  Woodward,  361,  479,  641. 

Curtis  V.  Alvord,  270. 

Curtis  V.  Ford,  286,  637, 

Curtis  V.  Henrietta  Bank,  345,  347. 

Curtis  V.  Hoadley.  52. 

Curtis  V.  Hollingshead,  46. 

Curtis  V,  Hoxie,  57. 

Curtis  V,  Jackson,  457. 

Curtis  V.  Moore,  108. 

Curtis  V.  Munday,  563. 

Curtis  V.  Norris,  268, 

Curtis  V.  O'Brien,  503. 

Curtis  V.  Raymond,  268. 

Curtis  V.  Settle,  92. 

Curtis  V.  Smith,  284, 

Curtis  V.  Ward,  681. 

Curtis  V.  Wortsman,  195, 

Curwensville  Manuf.   Co,  v.  Bloom, 
119,  228. 

Cushing  V.  Hurd,  563,  610,  616. 

Cushing  V.  Laird,  386.  622. 

Cushman  v.  Haynes,  300. 

Custer  V.  White,  643. 

Cutcheon  v.  Weston,  530. 

Cutler  V.  Baker,  346. 

Cutler  V.  Evans,  527. 

Cutler  V.  Lang,  64,  473, 

Cutter  V.  Gould,  209. 

Cutter  V.  Howe,  394,  437,  433, 
C 


Cutter  V.  Perkins,  273. 

Cutter  V.  Richardson,  114,  481,  530. 

Cutters  V.  Baker,  268. 

Cutts  V,  Perkms,  300. 

D. 

Daggett  V.  McClintock,  563. 
Daggett  V.  Robins,  667. 
Dahms  v.  Sears,  296, 
Daily  v.  Jordan,  263. 
Daily  v.  Litchfield,  660. 
Daker  v.  Fuller,  401. 
Dakin  v.  Hudson,  254,  443,  443. 
Daley  v.  Cunningham,  239, 
Dall  V.  Cooper,  128,  428,  684. 
Dalsheimer  v.  McDaniel,  63. 
Dal  ton  V.  Bowker,  698, 
Dalton  \.  Shelton,  75. 
Dame  v.  Fales,  216. 
Damon  v.  Bryant,  170. 
Damron  v.  Sweetzer,  697. 
Dana  v.  Adams,  464, 
Danaher  v.  Prentiss,  501,  549. 
Dandridge  v.  Stevens,  92,  125. 
Danforth  v.  Carpenter,  142. 
Danforth  t.  Penny,  284,  335. 
Danforth  v.  Rupert,  487, 
Daniel  v.  Daniels,  620. 
Daniel  v.  Mitchel,  592,  593. 
Daniels  v.  Clark,  388. 
Daniels  v.  Eldredge,  265. 
Daniels  v.  Lewis,  539. 
Daniels  v.  Man,  506. 
Daniels  v.  Meinhard,  322,  336,  350. 
Daniels  v.  Sorrells,  562. 
Daniels  v.  Willard,  297. 
Danielson  v.  Andrews,  164. 
Darborrow's  Appeal,  183. 
D'Arcy  v.  Ketchum,  448,  450. 
Darlington  v.  Rogers,  331, 
Darnall  v.  Wood,  637. 
Darrance  v.  Preston,  434,  448,  451. 
Darst  V.  Levy,  564, 
Darwin  v.  Hatfield,  595. 
Davenport  v.  Ijacon.  10. 
Davenport  v.  McChesney,  268. 
Davenport  v.  Swan,  505, 


XXXIV 


TABLE    OF    CASES. 


Tlie  references  are  to  pages. 


Davenport  v.  Til  ton,  622. 

David  V.  Bircliard,  49,  193. 

Davidson  v.  Chatham  Bank,  201,  658. 

Davidson  v.  Clayland,  287,  483. 

Davidson  v.  Donovan,  319. 

Davidson  v.  Hackett,  120. 

Davidson  v.  Owens,  71. 

Davidson  v,  Waldion,  394. 

Davies  v.  Gallagher,  296. 

Davis  V.  Baker,  207. 

Davis  V.  Blunt,  577. 

Davis  V.  Commonwealth,  136,  677. 

Davis  V.  Dallas  N.  Bank,  222,  233. 

Davis  V.  Davis,  292,  293,  544. 

Davis  v.  Day,  502. 

Davis  V.  Drew,  292. 

Davis  V.  Edwards,  93,  106. 

Davis  V.  Eppiuger,  543. 

Davis  V.  Fogg,  558. 

Davis  V,  Fried  lander,  620. 

IDavis  V.  Garrett,  495. 

Davis  V.  Ham,  272. 

Davis  V.  Jenkins,  154. 

Davis  V.  Jones,  254. 

Davis  V.  Knapp,  381. 

Davis  V.  Land,  495. 

Davis  V.  Mahoney,  285,  405,  463. 

Davis  V.  Marshall,  139,  137,  476,  477. 

Davis  V.  Marston,  265. 

Davis  V.  Megroz,  3,  5,  183. 

Davis  V.  Miller,  401. 

Davis  V.  Montgomery,  329. 

Davis  V.  Morris,  585. 

Davis  V.  Moss,  190. 

Davis  V.  Oakford,  379. 

Davis  V.  Owenby,  577. 

Davis  V.  Pawlette,  271. 

Davis  V.  Railroad,  592. 

Davis  V.  Stone,  225,  394,  427,  433. 

Davis  V.  Summit,  263. 

Davis  V.  Tallot,  501. 

Davis  V.  Taylor,  299. 

Davis  V.  Webster,  503. 

Davis  V,  Willcy,  262. 

Davis  v.  Wilson,  268.  269. 

Davis,  etc.,  Co.  v.  Whitney,  397. 

Davis  Lumber  Co.  v.  Bank,  363,  372. 

Dawes  v.  Rodier,  187. 


Dawley  v.  Shervvin,  103. 

Dawson  v.  Baum,  682. 

Dawson  v.  Contee,  601. 

Dawson  v.  Holcomb,  190,  285,  287. 

Dawson  v.  Jones,  653. 

Dawson  v.  Maria,  364. 

Dawson  v.  Miller,  487. 

Dawson  v.  Moons.  240. 

Dawson  v.  Sims,  167. 

Dawson,  In  re,  646. 

Day  V.  Bach,  135,  169. 

Day  V.  Bennett,  111,  484,  485. 

Day  V.  Insurance  Co.,  272. 

Day  V.  Kendall,  51,  575. 

Day  V.  Newark  India  Rubber  Co.,  440. 

Day  V.  Zimmerman,  279. 

Deacon  v.  Oliver,  200. 

Deal  V.  Bogue,  619. 

Dean  v.  Bailey,  399, 

Dean  v.  Davis.  568. 

Dean  v.  Garnet,  479. 

Dean  v.  McGavock,  285. 

Dean  v.  Oppenheimer,  100,  106,  428. 

Dean  v.  Stevenson,  621,  677. 

Dearborn  v.  Vaughan,  467. 

Dearing  v.  Watkins,  567. 

Deaver  v.  Keith,  271. 

De  Bebian  v.  Gola,  109,  280. 

De  Blank  v.  Webb,  855. 

Deblieux  v.  Dotard,  293,  295. 

Debs  V.  Dalton,  336,  S57,  645,  651. 

Debys  v.  Yerbey,  31. 

Decatur   Mercantile  Co.   v.   Deford, 

500. 
De  Caussey  v.  Bailey,  59. 
De  Celis  v.  Porter,  617. 
Decker  v.  Bryant,  118. 
Decoster  v.  Livermore,  239. 
Deere  v.  Bagley,  683. 
Deere  v.  Wolf,  177. 
Deering  v.  Collins,  60. 
Deering  v.  Warren,  73,  101,  180. 
De  Forest  v.  Miller,  183. 
Degnan  v.  Wheeler,  484. 
Dehler  v.  Held,  659. 
Dehner  v.  Helmbacher  Forge,   etc., 

Mills,  279. 
Dehon  v.  Foster,  509,  510. 


TABLE    or    CASES. 


XXXV 


Tlie  references  are  to  pages. 


Delacroix  v.  Hart,  339. 
Delamator  v.  Miller,  162. 
Delano  v.  Kennedy,  490. 
Delaplain  v.  Rogers,  79. 
Delaplaine  v.  Armstrong,  15,  86,  95. 
Delby  v.  Tingley,  377,  650. 
De  Leon  v.  Heller,  69,  82. 
Delmas  v.  Insurance  Co.,  438. 
Delmas  v.  Morrison,  419. 
Delmoro  •«^.  Owen,  468. 
Deloacli  ",  Jones,  96. 
Demeritt  v.  Estes,  638. 
Dempsey  v.  Bowen,  52. 
Dempsey  v.  Gardner,  197. 
Denegre  v.  Milne,  72. 
Denning  v.  Corwin,  442. 
Dennis  v.  Twitchell,  298. 
Dennison  v.  Benner,  299. 
Dennison  v.  Blunienthal,  166. 
Dennison  v.  Nigh,  203. 
Dennison  v.  Taylor,  255,  359. 
Dennistown  v.  New  York,  etc.,  288. 
Denny  v.  Ward.  114,  585. 
Denny  v.  Warren,  404. 
Denny  v.  Willard,  401. 
Densniore  v.  Matthews,  662. 
Dent  V.  Smith,  9,  12,  673,  680,  689. 
Denton  v.  Livingston,  199,  244. 
Denver,  etc.,  R  Co.  v.  Smeeton,  381, 

509. 
Dequindre  v.  Williams,  441. 
Derby  v.  Shannon,  540. 
Derr  v.  Lubey,  308. 
Derra  v.  Bagby,  485. 
Derrickson  v.  Shovvell,  71. 
Dery  v.  McHoury,  7. 
Describes  v.  Wiliner,  356. 
Deska  v.  Baker,  227,  341. 
Des  Moines  Bank  v.  Hotel  Co.,  390. 
Des  Moines   &   Minn.    R.   R   Co.  v. 

Alley,  426,  459. 
Desmond  v.  Levy,  557. 
Desmond  v.  State,  499. 
Despain  v.  Crow,  274. 
Despatch   Line  v.    Bellamy   Manuf. 

Co.,  271,  412. 
Dessauer  v.  Koppin,  275. 
De  Stafiford  v.  Gartley,  62,  91. 


Detroit  Free  Press  Co.  v.  Association, 

105. 
Deti-oit    Post    and    Tribune    Co.    v. 

Reilly,  262. 
Detroit  Stove  Works  v.  Osmun,  269. 
Deupree  v.  Eisenach,  122,  475. 
Devall  V.  Taylor,  105. 
De  Verdal  v.  Maloone,  567. 
Devoe  v.  Brandt,  197. 
Devon  V.  Brownell,  301. 
Devries  v.  Summitt,  15,  93,  114,  121, 

434. 
Dew  V.  Bank  of  Ala.,  359. 
Dewey  v.  Field,  657. 
Dewey  v.  Garvey,  308. 
Dewey  v.  Green,  97. 
Dewing  v.  Wentworth,  289. 
De  Witt  V.  Kelly,  640. 
De  Witt  V.  Machine  Co.,  510. 
De  Witt  V.  Oppenheimer,  217,  657. 
De  Wolf  V.  Armstrong,  48. 
De  Wolf  V.  Babbett,  580. 
De  Wolf  V.  Dearborn,  13,  188. 
Dey  V.  Dunham,  577. 
Deyo  V.  Jeunison,  220. 
Dibnell  v.  Neely,  389. 
Dick  V.  Bailey,  395. 
Dicken  v  Hays,  193. 
Dickenson  v.  Cowley,  106. 
Dickey  v.  Fox,  302,  304. 
Dickinson  v.  Barnes,  483. 
Dickinson  v.  Benham,  54,  472,  484. 
Dickinson  v.  Clement,  261. 
Dickinson  v.  Dickinson,  74,  272. 
Dickinson  v.  Haj'es,  7. 
Dickinson  v.  Maynard,   12,  676,   690. 
Dickinson  v.  ^IcGraw,  678. 
Dickinson  v.  Strong,  260. 
Dickman  v.  Williams,  198. 
Dickson  v.  Maj'er,  95. 
Dider  v.  Courtnej%  689. 
Didier  v.  Galloway,  476. 
Diefendorf  v.  Oliver,  306. 
Dierolf  v.  Winterfield,  5,  491,  521. 
Dieter  v.  Smith,  268. 
Dietrich  v.  Lang,  60. 
Diettrich  v.  Wolffsohn,  165. 
Dinkelspiel  v.  Woolen  Mills,  100. 


XXX  VI 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Dilleuback  v.  Jerome,  399. 

Dillon  V.  Watkins,  138. 

Dingley  v.  Buffum,  190. 

Dintruff  v.  Tuthill,  95. 

Divine  v.  Harv  ie,  308,  316. 

Divver  v.  McLaughlin,  268. 

Dix  V.  Cobb,  653. 

Dixon  V.  Barnett,  578. 

Dixon  V.  Hill,  539. 

Dixon  V.  Lacoste,  562. 

Doan  V.  Garretson,  269. 

Dobbins  v.  Hyde,  300,  304,  659. 

Dobbins  v.  Railroad,  308. 

Dobbs  V.  The  Justices,  184. 

Doctors  K.  &  K.  v.. Post,  etc.,  Co., 

469. 
Dodd  V.  Brott,  301. 
Dodd  V.  Levy,  77,  314. 
Dodds  V.  Gregory,  378. 
Dodge  V.  Kniglit,  501. 
Dodge  V.  Walley,  6l8. 
Dodson  V.  Cooper,  681. 
Doe  V.  Anderson,  254,  458. 
Doe  V.  Routlege,  578. 
Dogan  V.  Cole,  13. 
Doggett  V.  Bates,  269. 
Doggett  V.  Bell,  48. 
Doggett  V.  Black,  513. 
Doggett  V.  Insurance  Co.,  635. 
Dolan  V.  Armstrong,  486. 
Dole  V.  Boutvvell.  645. 
Doll  V.  Cooper,  692. 
DoUins  V.  Lindsay,  77,  406,  544. 
Dollins  V.  Pollock,  253,  487,  576. 
Doll  man  v.  Moore,  317. 
Dolsen  v.  Brown,  300. 
Dominick  v.  Eacker,  165. 
Donald  v.  Nelson,  352,  382. 
Donham  v.  Wild,  395. 
Dounell  v.  Byern,  113. 
Donuell  v.  Jones,  128,  684,  691,  692. 
Donnell  v.  Portland,  etc.,  R.  Co.,  262, 

649. 
Donnelly  v.  Corbitt,  73. 
Donnelly  v.  Elser.  90. 
Donnelly  v.  O'Connor,  112,  142,  367, 

383,  556. 
Donnelson  v.  Colerain,  312. 


Doolittle  V.  McCulIough,  681. 

Doolittle  V.  Shelton,  4,  606,  61t 

Doran  v.  Cohen,  68. 

Dore  V.  Dawson,  301. 

Dore  V.  Dougherty,  352. 

Dorham  v.  Kane,  395. 

Dorn  V.  Blake,  622. 

Dorr  V.  Clark,  83.  84. 

Dorr  V.  Gibboney,  457. 

Dorr  V.  Kersliaw,  522,  525. 

Dorrier  v.  Masters,  394. 

Dorsey  v.  Kyle,  128,  305. 

Dotterer  v.  Bowe,  312. 

Douch  V.  Rahuer,  498. 

Douglas  V,  Orr,  210. 

Douglas  V.  Simpson,  301. 

Douglas  Co.  Nat.  Bank  v.  Sands,  50. 

Douglass  V.  Cissna,  44. 

Douglass  V.  Habestro,  461. 

Douglass  V.  Insurance  Co.,  751. 

Douglass  V.  Neil,  377. 

Douglass  V.  Winslow,  618. 

Dove  V.  Martin,  141. 

Dow  V.  Cheney,  499. 

Dow  V.  Humbert,  66. 

Dow  V.  Whitman,  252,  253,  254,  434. 

Dower  v.  Curtis,  272. 

Downer  v.  Shaw,  3,  426,  433. 

Downing  v.  Phillips,  482. 

Downman  v.  Chinn.  517. 

Downs  V.  Flanders,  239. 

Downs  V.  Fuller,  433. 

Doyle  V.  Gray,  271,  366,  367,  373,  386. 

Drago  V.  Moso,  65. 

Drake  v.  Hager,  108. 

Drake  v.  Lake  Shore  R.  Co.,  324,  379, 

510,  511. 
Drake  v.  Leigh  ton,  297. 
Drake  v.  Mooney,  230,  241. 
Drnke  v.  Railway  Co.,  363. 
Drake  v.  Sworts,  514,  631,  700. 
Drakeford  v.  Turk,  74. 
Drane  v.  McGavock,  287. 
Dray  Co.  v.  Hoefer,  692. 
Drennon  v.  Ross,  650. 
Dresser  v.  Cutter,  493. 
Dressor  v.  McCord,  261. 
Drew  V.  Alfred  Bank,  164. 


TABLE    OF   CASES. 


XXXVll 


Tlie  references  are  to  pages. 


Drew  V.  Dequindre,  84,  93,  252,  481. 

Drew  Glass  Co.  v.  Baldwin,  194. 

Drej'fus  v.  Maj'er,  536. 

Driesbacli  v.  Bank,  213. 

Driggs  V.  Harrison,  519. 

Dr-ecoll  v.  Hoyt,  371,  384 

Dronillard  v.  Whistler,  60. 

Droz  V.  E.  Baton  Rouge,  316. 

Drummond  v.  Stuart,  688. 

Dryden  v.  Adams,  268. 

Dryer  v.  Abercrombie,  74 

Dryer  v.  Lewis,  115. 

Dry -goods  Co.  v.  ]McPheeh',  48. 

Drysdale  v.  Biloxi,  151. 

Dubbs  V.  Hemken  et  al.,  251. 

Dublin  V.  Chadburn,  7. 

Dubois  V.  Dubois,  191,  285,  287. 

Dubois  V.  Glaub,  464 

Duchaud  v.  Rousseau,  209. 

Ducker  v.  Ware,  556. 

Dudley  v.  Falkuer,  260. 

Dudley  v.  Goodrich,  528. 

Duffee  V.  Call,  636.       , 

Duffy  &  Mehaffy  v.  Lytle,  521,  524. 

Duitruff  V.  Tuthill,  106. 

Duke  V.  R  I.  Locomotive  Works,  330, 

362. 
Dumay  v.  Sanchez,  104. 
Duncan  v.  Headley,  39,  95,  184 
Duncan  v.  Ware,  650. 
Duncan  v.  Wickliffe,  69. 
Duncan's  Heirs  v.  United  States,  437. 
Duncanson  v.  Bank,  214. 
Dunham  \.  Waterman,  55. 
Duuklee  v.  Fales,  210,  213,  427,  433. 
Dunlap  V.  Dillard,  471. 
Dunlap  V.  Hooper,  508. 
Dunlap  V.  McFarland,  118. 
Dunlevy  v.  Schwartz,  61,  97. 
Dunlop  V.  Pat.  F.  Ins.  Co.,  180,  267, 

289,  290,  334 
Dunn  V.  Crocker,  70,  470,  529,  609. 
Dunn  V.  Mackey,  70,  89. 
Dunn  V.  McAlpiue,  21. 
Dunn  V.  Missouri  Pac.  R  Co.,  353. 
Dunn  V.  Myers,  54. 
Dunn  V.  Salter,  39. 
Dunnegan  v.  Byers,  273,  303. 


Dunnenbaum  v.  Schram,  106. 

Dunning  v.  Humphrey,  135,  680,693. 

Dunsmoor  v.  Furstenfeldt,  290. 

Dupierris  v.  Hallisay,  302. 

Dupree  v.  Woodruff,  684 

Du  Puy  V.  Strong,  457. 

Durant  v.  Johnson.  555. 

Durham  v.  Lisso,  146. 

Duringer  v.  Moschino,  621. 

Durling  v.  Peck,  373. 

Durr  V.  Hervey,  45,  105. 

Durr  V.  Jackson,  42,  686, 

Durrossett's  Adm'r  v.  Hale,  253. 

Dutton  V.  Simmons,  165,  244,  864 

Dwight  V.  Bank  of  Michigan,  300. 

Dwight  V.  Brown,  576. 

Dwight  V.  Merritt,  165. 

Dwinel  v.  Stone,  272. 

Dwyer  v.  Benedict,  403. 

Dwyer  \.  Testard,  61,  121,  159. 

Dyer  v.  Flint,  83,  98. 

Dyer  v.  McHenry,  373. 

Dyer  v.  Sharp,  127. 

Dyett  V.  Hyman,  177. 

Dynes  v.  Hoover,  442. 

Dynes  v.  Robinson,  484 

Dyson  v.  Baker,  220,  221. 

E. 

Eads  V.  Pitkin,  121. 

Eagan  v.  Luby,  302. 

Ealer  v.  McAllister.  470. 

Earl  V.  Bicksford,  595. 

Earl  V.  Camp,  93,  121, 

Earl  V.  Matheney  629. 

Earl  V.  Spooner,  677. 

Earle  v.  McVeigh,  603. 

Early  v.  Doe,  251. 

Earthman  v.  Jones,  424. 

East,  etc.,  Co.  v.  Warren,  148. 

East  Line,  etc.,  R  R   Co.    \.  Terry, 

383,  384. 
Eastman  v.  Avery,  399. 
Eastman  v.  Clackamas  Co.,  614 
Eastman  v.  Thayer,  271. 
Easton  v,  Goodwin,  519. 
Easton  v,  Malavasi,  119. 


XXX  VIU 


TABLE    OF    CASES. 


Tlie  references  are  to  x>ages. 


Easton  v.  Ormsby,  528. 

East  Tenn.,  etc.,  Co.  v.  Kennedy,  258, 

334. 
Eaton  V.  Badger,  422.  433,  442,  451. 
Eaton  V.  Bartscherer,  677. 
Eberly  v.  Eowland,  29. 
Ebner  v.  Bradford,  77. 
Eby  V.  Watkins,  42. 
Eck  V.  Hoffman,  25. 
Eckman  v.  Hammond,  143,  676. 
Eckraan  v.  Munnerlyn,  49. 
Eddy  V.  Heath's  Garnishees,  260. 
Eddy  V.  Moore,  5,  .514. 
Eddy  V.  Morse,  521. 
Eddy  V.  O'Hara,  508. 
Eddy  V.  Providence.  363. 
Eddy  V.  Weaver,  544. 
Edgarton  v.  Hinchman,  465. 
Edgell  V.  Sigerson,  557. 
Edgerly  v.  Sanborn,  263. 
Edgerton   v.   Third   Municipality  of 

New  Orleans,  315,  316. 
Edick  V.  Green,  86. 
Edler  v.  Hasche.  351. 
Edmundson  v.  De  Kalb  Co.,  316,  338. 
Edmundson  v.  Phillips,  62. 
Edney  v.  Willis,  274,  278. 
Edrington  v.  Allsbrooks,  341. 
Edson  V.  Coburn,  496. 
Edson  V.  Pawlet,  273. 
Edson  V.  Sprout,  388. 
Edson  V.  Trask,  265. 
Edwards  v.  Bodine,  698. 
Edwards  v.  Cosgro,  375. 
Edwards  v.  Delaplaine,  373. 
Edwards  v.  Hughes,  466. 
Edwards  v.  Levisohn,  374. 
Edwards  v.  Prather,  490,  492. 
Edwards  v.  Pomeroy,  520. 
Edwards  v.  Roepke,  272,  509. 
Edwards  v.  Toomer,   428,   432,   434, 

442. 
Edwards  v.  Turner,  136. 
Egan  V.  Lumsden,  3,  33,  426. 
Egener  v.  Juch,  30. 
Egerman  v.  Krieckhaus,  77. 
Eggleston  v.  Munday,  568. 
Eichelberger  v.  Murdock,  259. 


Eisenhardt  v.  Cabanne,  486. 

Ela  v.  Shepard,  169,  232. 

Elam  V.  Barr,  91,  105. 

Elder  v.  Cutner,  682,  697. 

Eldred  v.  Bank,  464. 

Eldridge  v.  Lancy,  223. 

Eldridge  v.  Phillipson,  54,  55, 

Eldridge  v.  Robinson,  484. 

Ellicott  V.  Smith,  277. 

Ellington  v.  Moore,  25,  28,  33. 

Elliot  v.  Jackson,  72,  76,  473. 

Elliot  V.  Stevens,  143. 

Elliott  V.  Bowman.  200,  210. 

Elliott  V.  First  N.  Bank,  460. 

Elliott  V.  Hall,  495. 

Elliott  V.  Heath,  104. 

Elliott  V.  Keith,  41, 

Elliott  V.  Piersol,  436,  442,  449. 

Elliott  V.  Plukart,  129. 

Elliott  V.  Stocks,  180. 

Ellis  V.  Alien,  G80. 

Ellis  V.  Bonner,  223,  690,  691. 

Ellis  V.  Goodnow,  644. 

Ellis  V.  Harris,  73. 

Ellis  V.  Harrison,  72,  73. 

Ellison  V.  Bernstein,  47. 

Ellison  V.  Mounts,  474,  487. 

Ellison  V.  Tallon,  88.  485. 

Ellison  V.  Tuttle,  200. 

Ells  V.  Tousley,  617. 

Ellsworth  V.  Moore,  130. 

Ellsworth  V.  Scott,  465,  518. 

Elmer  v.  Welch,  259,  274. 

Elser  V.  Graber,  16,  517. 

Elser  V.  Rommel,  265. 

Elston  V.  Gillis,  301. 

Elston  V.  Robinson,  504. 

Elsworth  V.  Phelps,  568. 

Elwell  V.  Chamberlin,  596. 

Elwood  V.  Crowley,  362. 

Elwyn  V.  Jackson,  534,  535. 

Elyton  V.  Land  Co.,  336. 

Emanuel  v.  Mann,  516. 

Emanuel  v.  Smith,  623. 

Enibra  v.  Silliman,  479. 

Embree  v.  Hanna,  643. 

Embury  v.  Connor,  443. 

Emerson  v.  Detroit,  etc.,  Co.,  107, 110. 


TABLE   OF   CASES. 


XXX IX 


Tlie  references  are  to  pages. 


Emerson  v.  Littlefield,  498. 

Emerson  v.  Paine,  75. 

Emerson  v.  Skidmore,  81. 

Emerson  t.  Spring  Co.,  106. 

Emerson  v.  L'pton,  240. 

Emery  v.  Bidwell,  365. 

Emery  v.  Davis,  265. 

Emery  v.  Lawrence,  303. 

Emery  v.  Royal,  624,  651. 

Emery  v.  Yount,  208,  545. 

Emery's    Sons    v.    Irving    National 

Bank,  199. 
Em  mitt  V.  Yeigh,  86. 
Emmons  v.  Soutliern  Tel.  Co.,  506. 
Emory  Iron  and  Coal  Co.  v.  Wood, 

88. 
Empire  Mills  v.  Lovell,  691. 
Empire  Type  Co.  v.  Grant,  533. 
Endel  v.  Leibrock,  61,  69. 
Enders  v.  Richards,  52. 
Enders  v.  Steamer,  470. 
Endress  v.  Ent,  52,  491. 
Eneking  v.  Clay,  94. 
Enger  v.  Scheuerman,  509. 
English  V.  King,  263. 
English  V.  Wall,  83. 
Ennis  v.  Smith,  7. 
Enos  V.  Brown,  400. 
Enworth  v.  King,  543. 
Ephraim  v.  Kelleher,  50. 
Epping  V.  Aiken,  77. 
Epstein  v.  Salorgne,   4,   5,   351,   453, 

521. 
Epstin  V.  Levensou,  112. 
Erie  \.  Knapp,  16. 
Erskine  v.  Hohnbach,  169. 
Erskine  v.  Staley,  10,  412,  454,  550. 
Erstein  v.  Rothschild,  66, 117, 437,  440. 
Erwin  v.  Com.  &  R.  R.  Bank,  676. 
Ervvin  v.  Commercial  Bank,  121,  476. 
Erwin  v.  Ferguson,  129,  148. 
Erwin  v.  Heath,  4,  5,  69,  377,  521,  623, 

629. 
Espenhair  v,  Meyer,  73,  539. 
Espey  V.  Heidenheimer,  60,  472. 
Espy  V.  Comer,  193. 
Essex  Co.  Bank  v.  Johnson,  61,  9i3. 
Estahrook  v.  Earle,  256,  293. 


Estbrook  v.  Estbrook,  122. 

Estes  V.  Chesney,  683. 

Estes  V.  Fry,  48,  52. 

Estill  V.  Goodloe,  271. 

Estlovv  V.  Hanna,  56,  57. 

Ether  idge  v.  Wood  ley,  458. 

Eureka  Co.  v.  Sloteman,  473. 

Evans  v.  Andrews,  472. 

Evans  v.  Brovvnscombe,  330. 

Evans  v.  Davis,  244. 

Evans  v.  King,  456,  482. 

Evans  V.  Lawson,  81,  113,  159,  514. 

Evans  v.  McGlasson.  618. 

Evans  v.  Matlock,  643. 

Evans  v.  Mohn,  357. 

Evans  v.  Parks,  14. 

Evans  v.  Saul,  37. 

Evans  v.  Snyder,  572. 

Evans  v.  Tucker,  G2,  100. 

Evans  v.  Virgin,  45,  55,  207,  488. 

Evans  v.  Warner,  49. 

Eveleth  v.  Little,  242. 

Everdell  v.  Sheboygan,  etc.,  R.  R.  Co., 

328,  348,  459,  461. 
Everett  v.  Walker.  288. 
Everett  v.  Wesimoreland,  520. 
Everett  v.  Wolcott,  299. 
Everingham  v.  Vanderbilt,  78. 
Everitt  v.  Everitt  Manuf.  Co.,  541. 
Evert  on  v.  Powell.  376. 
Ewing  v.  City  of  St.  Louis,  438. 
Excelsioi',  etc.,  Co.  v.  Haines,  263. 
Excelsioi',  etc.,  Co.  v.  Lukens,  611. 
Exchange  Bank  v.  Freeman,  393. 
Exchange  Bank  v.  Gulick,  266. 
Eyermanv.  Krieckhaus,  257. 
Eyssallenne  v.  Bank,  516. 
Eyster  v.  Gaflf,  407. 
Ezelle  V.  Simpson,  228,  237. 

P. 

Fairbanks  v.  Bennett,  16,  163. 
Fairbanks  v.  Lorig,  109. 
Fairbanks  v.  Sargeant,  302. 
Fairbanks  v.  Stanley,  467. 
Fairfield  v.  Baldwin,  585. 
Fairfield  v.  Madison  Manuf.  Co.,  470. 


xl 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Fairfield  v.  Paine,  235,  545. 

Falls  V.  Weissinger,  394. 

Falsom  v.  Haskell,  259, 

Falvey  v.  Aclamson,  482. 

Fanning  v.  First  Nat.  Bank,  494,  505. 

Fargo  V.  Ames,  566. 

Farley  v,  Farior,  61. 

Farmer  v.  Medcap,  319. 

Farmer  v.  Simpson,  645, 

Farmers'  Bank  v.  Beaston,  191,  285. 

Farmers'  Bank  v.  Fonda,  72. 

Farmers'  Bank  v.  Gettinger,  83. 

Farmers',   etc.,  Co.  v.  Minn.  Works, 

563. 
Farmers',   etc.,  Nat.   Bank  v.  King, 

270,  328. 
Farmers'     &     Mechanics'    Bank    v. 

Welles,  350. 
Farmers'     &    Merchants'    Bank    v. 

Fi-anklin  Bank,  373. 
Farnham  v.  Oilman,  395. 
Farnsworth  v.  Childs,  577. 
Farr  v.  Newman,  287. 
Farrar  v.  Bates,  639. 
Farrar  v.  Olmstead,  6. 
Farrar  v.  Talley,  676,  686. 
Farriugton  v.  Edgerly,  403. 
Farrington  v.  Sexton,  387,  638. 
Farris  v.  The  State,  395,  399,  403. 
Farrow  v.  Barker,  27,  32,  33. 
Farrow  v.  Hayes,  83. 
Farwell  v.  Chambers,  258,  339,  349, 

392. 
Farwell  v.  Circuit  Judge,  282. 
Farwell  v.  Furniss,  54. 
Farwell  v.  Howard,  364,  371,  383,  384. 
Farwell  v.  Wilmarth,  297. 
Farwell  v.  Wright,  48,  74. 
Fast  V.  Wolf,  312. 
Faulk  Y.  Smith,  245,  434. 
Faulkner,  In  re,  34,  92,  97,  119,  121, 

122,  529. 
Faulkner  v.  Brigel,  136. 
Faulkner  v.  Waters,  272. 
Faulks  V.  Heard,  625. 
FauU  V.  Alaska  G.  &  S.  M.  Co.,  336. 
Faver  v.  Bank  of  Alabama,  80. 
Fay  V.  Sears,  363,  365,  366,  371. 


Fay  V.  Smith,  273. 

Fearey  v.  Cummings.  383. 

Fearing  v.  Shafner,  290. 

Fearle,  Ex  parte,  285. 

Fears  v.  Thompson,  241,  500. 

Feary  v.  Cummings,  263,  306. 

Feary  v.  Hotchkiss,  205. 

Feathei-ston  v.  Compton,  359. 

Feazel  v.  Cooper,  234.   - 

Feazle  v.  Simpson,  691. 

Fechheimer  v.  Hays,  69. 

I'eder  v.  Solomon.  615. 

Fee  V.  Iron  Co..  586. 

Fee  V,  Moore,  539,  564. 

Fee  V.  State,  357. 

Fee  V.  The  State  ex  rel.  Pleasant,  462. 

Feikert  v.  Wilson,  3. 

Felch  V.  Eau  Pleiue  Lumber  Co.,  267, 

860. 
Felker  v,  Emerson,  700. 
Fellows  V.  Brown,  75. 
Fellows  V.  Commercial  Bank,  195. 
Fellows  V.  Dickens,  477. 
Fellows  V.  Duncan.  277. 
Fellows  V.  Miller,  135, 478. 
Fellows  T,  Smith,  506. 
Fellows  Y.  Wadsworth,  400. 
Felton  Y.  Wadsworth,  548. 
Fenglin  v.  Cairo  &  St.  Louis  R.  R. 

Co.,  232,  353. 
Fenn  y.  Holme,  438. 
Fenton  y.  Block,  258,  641. 
Fenton  y.  Fisher,  290. 
Feran  v.  Rudolphsen,  187. 
Ferguson  y.  Baker,  698. 
Ferguson  v.  Chastant,  52. 
Ferguson  y.  CravYford,  3. 
Ferguson  v.  Gilbert,  540. 
Ferguson  y.  Glidewell,  490,  522. 
Ferguson  y.  Smith,  112. 
Ferguson  y.  Vance,  45,  433,  521,  528. 
Fernald  v.  Chase,  201,  203. 
Fernau  y.  Butcher,  521. 
Ferris  y.  Carlton,  118. 
Ferris  v.  Ferris,  75. 
Fessenden  y.  Hill,  84. 
Fettyplace  y.  Dutch,  395. 
Fewlass  v.  Abbott,  364. 


TABLE   OF    CASES. 


xli 


The  references  are  to  pages. 


Fidelity  Ins.  Co.  v.  Railroad  Ck).,  329. 

Field  V.  Adreon,  39. 

I'ield  V.  Crawford,  259,  293. 

Field  V.  Dutch,  3,  10. 

Field  V.  Haines,  306. 

Field  V.  Jones,  289,  290. 

Field  V.  Langsdorf,  300. 

Field  V.  Livermore,  54. 

Field  V.  McKinney,  506,  653, 

Field  V.  Malone,  384. 

Field  V.  Milburn,  543, 

Field  V.  Park,  102. 

Field  V.  Watkins,  363, 

Fielder  v.  Jessup,  324,  509. 

Fieldino;  v.  Lucas,  28. 

Fife  V.  Clark,  492,  521. 

Fifield  V.  Wood,  457. 

Fifield  V.  Wooster,  162,  163. 

Final  v.  Backus,  582. 

Finch  v.  Earl  of  Winchelsea,  617, 

Finding  v.  Hartman,  198. 

Fink  V.  Philps,  575. 

Finley  v.  Bryson,  57. 

Firebaugh  v.  Hill,  443. 

Firebaugh  v.  Stone,  388, 

First  V.  Miller,  191,  285,  287, 

First  Baptist  Church  v.  Hyde,  370, 

First  Nat  Bank  v.  Bank,  568, 

First  Nat.  Bank   v.  Burch,   325,  327, 

333. 
First  Nat,  Bank  v.  Carter,  562, 
First  Nat.  Bank  v,  Cochran,  540, 
First  Nat.  Bank  v.   Davenport,   etc., 

R.  Co.,  328. 
First  Nat.  Bank  v.  Gandy,  260, 
First  Nat.  Bank  v,  Gerson,  568. 
First  Nat.  Bank  v.  Graham,  388,  508. 
First  Nat.  Bank  v.  Greenwood,  6,  194, 

234,  461,  467,  541, 
First  Nat.  Bank  v,  Hauchett,  16,  288. 
First  Nat.  Bank  v.  Houts,  225,  683. 
First  Nat.  Bank  v.  Hughes.  572,  578. 
First  Nat.  Bank  v.  Jaggers,  506. 
First  Nat.  Ban!-  v.  Kansas  City  Lime 

Co.,  557. 
First  Nat.  Bank  v.  Leppel,  352. 
First  Nat.  Bank  v.  Light  Co.,  209,  211. 
First  Nat.  Bank  v.  Lumber  Co.,  194. 


First  Nat.  Bank  v,  ]\ross,  78. 
First  Nat  Bank  v.  North.  171. 
First  Nat.  Bank  v,  Ottawa,  316. 
First  Nat  Bank  v.  Perry,  268, 
First  Nat  Bank  v,  Portland,   etc,  R 

Co.,  299. 
First  Nat  Bank  v,  Ragan,  74, 
First  Nat  Bank  v.  Railroad  Co.,  260, 
First  Nat  Bank  v.  Ranch  Co..  563, 
First  Nat  Bank  v,  Randall,  471, 
First  Nat.  Bank  v.  Redman,  1.5. 
First  Nat  Bank  v.    Robertson,     364, 

369. 
First  Nat  Bank  v.  Rosenfield,  56. 
First  Nat  Bank  v,  Stanley,  413. 
First  Nat  Bank  v,  Steele.  106. 
First  Nat  Bank  v.  Swan,  57,  474. 
First  Nat  Bank  v.  Turner,  388, 
First  Nat  Bank  v.  Van  Brocklin,  302. 
First  Nat  Bank  v,  Weckler,  487,  512. 
Fish  V.  Field.  271. 
Fish  V.  Fowlie,  207, 
Fish  V,  Keene3',  376, 
Fish  V,  Street,  592. 
Fisher  v.  Consequa,  70,  483. 
Fisher  v.  Hall,  337. 
Fisher  v.  Hood,  473, 
Fisher  v.  Lane.  3,  426, 
Fisher  v.  Marsh.  602. 
Fisher  v.  McGirr.  669. 
Fisher  v.  Secrist,  63. 
Fisher  v.  Tallman,  579. 
Fisher  v,  Taylor.  466. 
Fisher  v.  Williams.  42,  369. 
Fisher  v.  Vose,  46.3. 
Fisk  V,  Aldrich,  392. 
Fisk  V.  Weston,  304,  384. 
Fitch  V.  Hammer.  72. 
Fitch  Y.  Rogers,  427,  433. 
Fitch  v.  Ross,  3,  426,  433.  521. 
Fitch  V.  Waite,  11,  32,  37,  39,  171, 199, 

201. 
Fitch  V.  Workman,  307. 
Fitch.  Matter  of.  92,  97,  118. 
Fitchett  V.  Dolbee,  292. 
Fithian  v.  N,  Y,  &  Erie  R.  Co.,  323, 

333. 
Fitzgerald  v.  Blake,  217. 


xlii 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Fitzgerald  v.  Hollingsworth,  257. 

Fitzgerald  v.  McMurran,  33. 

Fitzgerald,  Matter  of,  27,  32,  40. 

Fitzgerald's  Case,  39. 

Fitzhugh  V.  Hellen,  206. 

Fitzpatrick  v.  Flagg,  696,  698. 

Fitzpatrick  v.  Flannagan,  3,  4,  5,  54, 
55,  113,  116,  305,  481. 

Fitzsimnions  v.  Marks,  3,  4,  426,  448. 

Fladland  v.  Delaplaine,  246, 

Flake  v.  Day,  16. 

Flanagan  v.  Cutler,  181,  565,  654,  662. 

Flanagan  v.  Gilchrist,  681. 

Flanagan  v.  Wood,  403,  429,  433. 

Flandrow,  Ee,  291. 

Flannagan  v.  Donaldson,  43. 

Flash  V.  Morris,  381. 

Flash  V,  Paul,  341,  377. 

Fleetwood  v.  Dwight,  681. 

Fleicher  v.  Green  wald,  303. 

Fleisch  v.  St.  Louis  N.  Bank  of  Com- 
merce, 200. 

Fleischman  v.  Bowser,  578. 

Fleischner  v.  Cable  Co.,  117. 

Fleitas  v.  Cockrem,  134,  135. 

Fleming  v.  Bailej%  680,  685. 

Fleming  v.  Burge,  87. 

Flersheim  v.  Cary,  568. 

Fletcher  v.  Fletcher,  189. 

Fletcher  v.  Harcott,  174. 

Fletcher  v.  Menken,  518,  530. 

Fletcher  v.  Morrell,  406. 

Fletcher  v.  Pack,  577. 

Fletcher  v.  Ware,  354,  506,  654. 

Flexner  v.  Dickerson,  113,  434. 

Fling  V.  Goodali,  577. 

Floege  V.  Wieduer,  198. 

Flood  V.  Randall,  14,  165. 

Florence  v.  Orleans,  534. 

Florentine  v.  Barton,  441. 

Fiorsheim,  etc.,  Co.  v.  Commission 
Co.,  163. 

Flournay  v.  Lyon,  505,  684. 

Flourney  v.  Rutlege,  360. 

Flower  v.  Griffith,  91,  103. 

Flower  v.  Parker,  645. 

Flowers  v.  Miller,  42. 

Floyd  V.  Black,  254. 


Floyd  V.  Hamilton,  684. 

Floyd  County  Ag.  and  Mechan.  As- 
sociation V.  Tompkins,  461. 

Focke  V.  Blum,  291,  695. 

Focke  V.  Hardeman,  60,  110,  117. 

Fogg  V.  Littlefield,  503. 

Fogleman  v.  Shively,  261. 

Fogler  V.  Marston,  299. 

Foley,  In  re,  570. 

Folkerts  v.  Standish,  269. 

Folsom  V.  Connors,  254,  260,  293. 

Folsom  V.  Teichner,  465.    . 

Foot  V.  Stevens,  586. 

Foran  v.  Johnson,  110,  111. 

Forbes  v.  Hyde,  464. 

Forbes  v.  Navra,  514,  556. 

Forbes  v.  Scannell,  55. 

Force  v.  Brown,  292,  293,  295. 

Force  v.  Gower,  3,  428.  433. 

Ford  V.  Detroit  Co.,  349. 

Ford  V.  Dock  Co.,  15,  275,  282,  350. 

Ford  V.  Dyer,  170,  222. 

Ford  V.  Hurd.  130,  138,  360,  422,  476. 

Ford  V.  Wilson,  251. 

Ford  V.  Woodward,  9,  137,  860. 

Foreman  v.  Carter,  34. 

Forepaugh  v.  Appold,  298. 

Forlina  v.  Troolicht,  42.  ' 

Forrest  v.  O'Donuell,  514. 

Forsyth  v.  Warren,  251,  255,  606. 

Fortenheim  v.  Claflin,  82,  83,  110. 

Fort  V.  Stroheeker,  626. 

Fort  Madison,  etc.  v.  Bank,  214. 

Fort  Worth,  etc.,  Co.  v.  Hitson,  460, 
700. 

Fortman  v.  Rottier,  490. 

Fortune  v.  State  Bank,  258. 

Fortune  v.  St.  Louis,  316. 

Foss  V.  Stuart,  170,  222,  223. 

Foster  v.  Byrne,  507. 

Foster  v.  Dryfus,  609,  611. 

Foster  v.  Dudley,  271. 

Foster  v.  Glazener,  443. 

Foster  v.  Goodwyn,  488. 

Foster  v.  Hall,  28,  61. 

Foster  v.  Haynes,  392,  628. 

Foster  v.  Higginbotham,  195. 

Foster  v.  Jones,  121,  377. 


TABLE    OF   CASES. 


xliii 


The  references  are  to  pages. 


Foster  v.  Mabe,  220. 

Foster  v.  Mill  Co.,  48. 

Foster  v.  Milliner,  501. 

Foster  v.  Patten,  563. 

Foster  v.  Potter,  214. 

Foster  v.  Popes,  197. 

Foster  v.  Siuger,  263,  372,  366,  653. 

Foster  v.  Sweeney,  680,  685,  688. 

Foster  v.  Walker,  271. 

Foster  v.  White,  653. 

Foster  v.  Wootlfin.  114. 

Foster's  Case,  468. 

Foulks  V.  Falls,  140. 

Foulks  V.  Pegg,  395. 

Fountain  v.  Smith,  256,  269. 

Fourth  N.  Bank  v.  ]\Iayer,  623. 

Fourth  School  District  in  Ruinford 

V.  Wood,  814. 
Fowler  v.  Doyle,  386. 
Fowler  v.  Jenkins,  444. 
Fowler  v.  McClelland.  292. 
Fowler  v.  Pittsburg,  etc.,  R.  R   Co., 

328. 
Fowler  v.  Williamson,  369. 
Foyles  v.  Kelso,  253,  254,  443,  445. 
Fox  V.  Able,  162. 
Fox  V.  Ark.,  etc.,  Co.,  576. 
Fox  V.  Cronan,  506. 
Fox  V.  Hoyt,  444. 
Fox  V.  Mackenzie.  523. 
Fox  V.  Reed,  372. 
Fox  V.  Webster,  857. 
Francis  v.  Burnett,  23. 
Francis  v.  Nash,  199. 
Frank  v.  Chaffee,  12,  558,  680,  698. 
Frank  v.  Frank,  265,  386^ 
Frank  v.  King,  536. 
Frank  v.  Seigel,  77. 
Frank  v.  Tatura,  226. 
Franke  v.  Eby,  430. 
Frankel  v.  Stern,  460,  478. 
Frankenheimer  v.  Slocum,  69. 
Franklin  v.  Claflliu,  109. 
Franklin  v.  Gumersell,  224. 
Franklin  Bank  v.  Bachelder,  468. 
Franklin  Ins.  Co.  v.  West,  12,  272. 
Frantz  v.  Han  ford,  568,  683. 
Frazier  v.  Wilcox,  13. 


Free  v.  Hukill,  95. 
Freeborn  v.  Glazer,  116,  471. 
Freeman  v.  Bank,  281. 
Freeman  v.  Creech,  114 
Freeman  v.  Grist,  555. 
Freeman  v.  Howe,  285,  663. 
Freeman  v.  Miller,  351,  356,  631. 
Freeman  v.  Sturges  Exchange  Bank, 

321. 
Freeman  v.  Thompson,  252,  253,  377, 

445. 
Freeman  v.  Watkins,  619. 
Freer  v.  White,  117. 
Frellson  v.  Green,  11. 
Fiellson  v.  Stewart,  16. 
Fremont,  etc.,  Co.  v.  Fulton,  81,  89. 
French  v.  Chase,  116. 
French  v.  De  Bow,  397. 
French  v.  Duncan,  687. 
French  v.  Hoyt,  254,  428. 
French  v.  Reel,  665. 
French  v.  Sale.  561. 
French  v.  Wade,  586. 
Frere  v.  Perret,  99. 
Fretwell  v.  Laffoon,  364',  654. 
Fridenberg  v.  Pierson,  540,  548. 
Frieberg  v.  Elliott,  192. 
Frieberg  v.  Frieberg,  177,  224,  574 
Frieberg  v.  Sanger,  575. 
Friedenrich  v.  Moore,  357. 
Friedlander  v.  Mj-ers,  90. 
Friedlander  v.  Pollock,  46. 
Friedman  v.  Sullivan,  500. 
Friend  v.  Garcelon.  507. 
Frierson  v.  Branch,  194. 
Frink  v.  Potter,  70. 
Frisk  V.  Reigelman,  277,  376,  626. 
Frizzell  v.  Willard,  376. 
Frost  V.  Brisben,  29. 
Frost  V.  Cook,  138,  139. 
Frost  V.  Jordan.  697. 
Frost  V.  Kellogg,  186. 
Frost  V.  Shaw,  497. 
Frost  V.  White,  492. 
Frothingham  v.  Haley,  272. 
Frounstein  v.  Rosenham,  403. 
Fulbright  v.  Cannefox,  586. 
J  Fullam  V,  Stearns.  232,  244 


xliv 


TABLE    OF    CASES. 


Tlie  references  are  to  pages. 


Fuller  V.  Arnold,  75. 

Fuller  V.  Beck,  461. 

Fuller  V.  Bryan,  30,  33. 

Fuller  V.  Duren,  72. 

Fuller  V.  Foote,  354. 

Fuller  V.  Hasbrouk,  10. 

Fuller  V.  Holden,  657. 

Fuller  V.  Jewett,  199. 

Fuller  V.  Langford,  446. 

Fuller  V.  Nickerson,  14. 

Fuller  V.  O'Brien,  262,  280,  302. 

Fullerton  v.  Bank,  437. 

Fullertou  v.  Mack,  218. 

Fulton  V.  Fultou,  534. 

Fulton  V.  Heaton,  1G9. 

Fulweiler  v.  Hughes,  273,  308. 

Funkhouser  v.  How,  302,  304,  652. 

Furman  v.  Walter,  69,  86,  465,  484. 

486. 
Furness  v.  Read,  68. 

G. 

Gaddis  v.  Lord,  688. 

Gaffield  v.  Hapgood,  190. 

Gage  V.  Gates,  77. 

Gage  V.  Chesebrow,  388. 

Gaines  v.  Bierne,  623. 

Gaines  v.  Page,  557. 

Gaither  v.  Bellevv,  289,  290. 

Galbraith  v.  Davis,  580. 

Gale  V.  Siefert,  527. 

Gale  V.  Ward,  214. 

Galena  &  Southern  Wisconsin  R.  R 

Co.  V.  Stahl,  200. 
Gales  V.  Tusten,  319. 
Gall  V.  Hinton,  186,  495. 
Gallagher  v.  Cogswell,   134,  476,  477. 
Gallagher  v.  Goldfrank,  50. 
Galle  V.  Tode,  48. 
Galloway  v.  Bird,  242. 
Galloway  v.  Holmes,  90,  123. 
Gallup  V.  Josselyn,  180. 
Gallup  V.  Robinson,  216. 
Galpin  v.  Page,  245,  603. 
Gans  V.  Beasley,  112,  151. 
Garcia  v.  Insurance  Co.,  382. 
Gardiner  v.  Mayor,  592,  595. 


Gardner  v.  Donnelly,  515,  519.  ' 

Gardner  v.  Hust,  585. 

Gardner  v.  Lane,  592. 

Garland  v.  Sperling,  268,  274. 

Garner  v.  Burleson,  104,  105. 

Garner  v.  Campbell,  667. 

Garner  v.  Van  Alstine,  583. 

Garner  v.  White,  61,  97. 

Garnet  v.  Wimp,  169. 

Garnett  v.  Macon,  592,  594 

Garreton  v.  Brown,  191. 

Gan-etson  v.  Reeder,  128. 

Garrett  v.  Jaffray,  302. 

Garrett  v.  Logan,  698. 

Garrett  v.  Taylor,  59,  61. 

Garvin  v.  Paul,  183. 

Gary  v.  Brown,  371. 

Gary  v.  May,  253. 

Gary  v.  McCown,  233. 

Gasherie  v.  Apple,  54,  472,  484. 

Gasquet  v.  Collins,  478. 

Gasquet  v.  Johnson,  580. 

Gass  v.  Williams,  491,  529,  609,  611, 

Gassett  v.  Grout,  292. 

Gassner  v.  Patterson,  563. 

Gatchell  v.  Foster,  368. 

Gates  V.  Bennett,  15. 

Gates  V.  Bloom,  98. 

Gates  V.  Bushnell,  11,  554 

Gates  V.  Flint,  213. 

Gates  V.  Gates,  395. 

Gates  V.  Kerby,  302,  304 

Gates  V.  Trusten,  303,  351,  354  443, 

458. 
Gathercole  v.  Bedel,  466. 
Gause  v.  Cone,  261. 
Gay  V.  Alter,  592. 
Gay  V.  Caldwell,  240. 
Gay  V.  Eaton,  419,  433,  465. 
Gay  V.  Southworth,  501. 
Gazen  v.  Royce,  82,  90. 
Gee  V.  Alabama,  etc.,  Co.,  487. 
Gee  V.  Warwick,  292. 
Geer  v.  Chapell,  271. 
Geer  v.  Putnam,  162. 
Geiger  v.  Greiner,  87. 
Gel  poke  v.  Dubuque,  438. 
Gelstrop  v.  Moore,  254. 


TABLE    OF    CASES. 


xlv 


Tlie  refei-ences  are  to  pages. 


Gemmell  v.  Rice,  GO. 

Genesee  Sav.  Bank  v.  ^Michigan,  etc., 

Co.,  485. 
Genin  v.  Tompkins,  484,  486. 
George  v.  Bassett,  494. 
George  v.  Fellows,  494,  513. 
George  v.  Ralls  Co.,  312. 
Georgia  Ice  Co.  v.  Porter,  155. 
Georgia  Ins.  Co.  v.  Oliver,  634. 
Gerber  v.  Ackle}',  661. 
Gerdes  v.  Sears,  239,  606. 
Gere  v.  Gundlach.  160. 
Germain    v.    Steam    Tug     Indiana, 

667. 
German  American   Bank  v.  Butler, 

377. 
German  Bank  v.  Dash,  49. 
German  Bank  v.  Meyer,  42. 
German  Bank  v,  Peuser.  651. 
German  N.  Bank  v.  National  State 

Bank.  363. 
Germania  Bank  t.  Peuser,  92,  680. 
Gerson  v.  Jamar,  555. 
Gery  v.  Ehrgood,  505. 
Gessner  v.  Pal  mater,  14. 
Getchell  v.  Chase,  264,  271,  385. 
Gayer  v.  Insurance  Co.,  214. 
Gibbon  v.  Bryan,  360. 
Gibbons  v.  Chei'ry,  357. 
Gibbs  v.  Chase,  170,  242,  395. 
Gibbs  V.  Petree,  447. 
Gibbs  V.  Queen  Ins.  Co.,  333,  385. 
Gibbs  V.  Shaw,  428,  547. 
Gibson  v.  Everett,  432. 
Gibson  V.  Jenney,  170,  222,  223. 
Gibson  v.  McLaughlin,  41,  48. 
Gibson  v.  Park  Bank,  201,  238,  321. 
Gibson  v.  Roll,  442. 
Gibson  v.  Wilson,  227,  525,  561. 
Giddens  v.  Boiling,  189. 
Giddings  v.  Coleman,  305. 
Giddings  v.  Squier,  37,  40. 
Gies  V.  Bechtner,  262. 
Gilbert  v.  Anthony,  515. 
Gilbert  v.  Brown,  237, 
Gilbert  v.  Crandall,  395,  899. 
Gilbert  v.  Gilbert,  607,  675. 
Gilbert  v.  Hollinger,  220,  484. 


Gilchrist  v.  West  Virginia  Oil  and 
Oil  Land  Co.,  587. 

Gildersleeve  v.  Caraway,  648. 

Gile  V.  Devens,  164. 

Gile  V.  Hallock,  496. 

Giles  V.  Ash,  299. 

Giles  V.  Devens,  296. 

Giles  V.  Hicks,  35.5. 

Gilkerson  v.  Knight,  81. 

Gilkerson,  etc.  v.  Bond,  543. 

Gill  V.  Downs,  472. 

Gill  V.  Wyatt,  40. 

Gillett  V.  Needham,  254,  428. 

Gillette  v.  Cooper,  263. 

Gilliland  v.  Cullem.  247. 

Gillispie  v.  Clark,  5,  492,  522. 

Gillispie  v.  Commercial  Mutual  Ma- 
rine Ins.  Co.,  255,  421. 

Gilman  v.  Oilman,  453. 

Oilman  v.  Hill,  222. 

Gilman  v.  III.  &  Miss.  Tel.  Co.,  641. 

Gilman  v.  Stetson,  42. 

Gilman  v.  Wheelock,  561. 

Gilniore  v.  Carnahan,  641. 

Gilmore  v.  McNeil,  404. 

Gil  more  v.  N.  Am.  Sand  Co.,  619. 

Gilmour  v.  Heinze,  682. 

Ging  Gee  v.  Ah  Jim,  700. 

Ginsberg  v.  Pohl,  224. 

Girard  v.  Moore,  685. 

Girard,  etc..  Trust  Co.  v.  Chambers, 
266. 

Girard  Fire  Ins.  Co.  v.  Field,  16,  273. 

Givens  v.  Merchants'  N.  Bank,  31. 

Gleason  v.  Briggs,  700. 

Gleason  v.  Gage,  388. 

Glenn  v.  Eddy,  162. 

Glenn  v.  Gill.  289,  290,  305. 

Glenn  Iron  Works,  In  re,  330. 

Glidden  v.  Whittier,  522. 

Globe  Milling  Co.  v.  Hansen,  377. 

Globe  Woolen  Co.  v.  Carhart,  193. 

Goble  v.  Howard,  74. 

God  be  Pitts  Drug  Co.  v.  Allen,  50, 
485. 

God  bold  v.  Bass,  292. 

OcxUlard  v.  Cunuiugham,  140. 

Goddard  v.  Guittar,  o65. 


xlvi 


T  VBLE    OF   CASES. 


Tlie  references  are  to  pages. 


Goddarcl  v.  Hapgood,  307,  646. 
Godden  v.  Pierson,  57. 
Godfrey  v.  McCoraber,  301,  321. 
Goebel  v.  Stevenson,  519. 
Goetz  V.  Hanchett,  225. 
Gold  V.  Railroad  Co.,  284,  335. 
Golden  v.  Conner,  503. 
Golden  Gate  Co.  v.  Jackson,  73. 
Goldsmith  v.  Picard,  687. 
Goldsmith  v.  Stetson,  158. 
Goldsticker  v.  Stetson,  476. 
Goll  V.  Hubbell,  376. 
Golson  V,  Powell,  301. 
Gomilla  v.  Milliken,  545. 
Goodbar  v.  Bailey,  105. 
Goodbar  v.  Bank,  557,  688. 
Goodbar  v.  City  N.  Bank,  205. 
Goodbar  v.  Lindsley,  201. 
Goode  V.  Barr,  297. 
Goode  V.  Holcombe,  624. 
Goode  V.  Longmire,  220,  224. 
Goodell  V.  Fairbrother,  180. 
Goodenovv  v.  Snyder,  72. 
Goodhue  v.  King,  527,  572. 
Goodman  v.  Henley,  301,  453. 
Goodman  v.  Moss,  211. 
Goodman  v.  Niblack,  251. 
Goodrich  v.  Church,  395,  408. 
Goodwin  v.  Richardson,  610,  616. 
Goodyear  Rubber  Co.  v.  Knapp,  106, 

124,  421. 
Googins  V.  Gilmore,  50. 
Goore  v.  McDaniel,  10. 
Gordin  v.  Moore,  373. 
Gordon  v.  Baillie,  16. 
Gordon  v.  Coolidge,  364. 
Gordon  v.  Gaffey,  75. 
Gordon  v.  Haywood,  577. 
Gordon  v.  Jenney,  395,  404.' 
Gordon  v.  Johnston,  514. 
Gordon  v.  McCurdy,  558. 
Gore  V.  Clisby,  260. 
Gore  V.  Kay,  48,  193,  483. 
Gore  V.  Mastin,  169. 
Gorman  v.  Swaggerty,  339. 
Goss  V.  Boulder  Co.  Comra'rs,  58. 
Goss  V.  Gowing,  106,  107. 
Gottfried  v.  Miller,  214. 


Gouch  V.  Tolman,  383. 

Goudy  V.  Hall.  442,  445, 

Gould  V.  Howell,  179. 

Gould  V.  Meyers,  361,  629. 

Gould  V.  Newburyport  R.  Co.,  259. 

Goulding  v.  Hair,  181,  565,  662. 

Gove  V.  Farrell,  271. 

Gover  v.  Barnes,  483. 

Gover  v.  Hancock,  661. 

Gowan  v.  Hanson,  358,  376. 

Govver  v.  Emery,  174,  221. 

Gower  v.  Stephens,  403,  404,  427. 

Grabenheimer  v.  Rindskoflf,  540. 

Grace  v.  Rittenberry,  16. 

Grace  v.  Wade,  576. 

Grady  v.  Bramlet,  498. 

Graham  v.  Boynton,  622. 

Graham  v.  Bradbury,  31. 

Graham  v.  Burckhalter,  16,  134,  185, 

477. 
Graham  v.  Crockett,  49. 
Graham  v.  Culver,  499. 
Graham  v.  De  Lannay,  121. 
Graham  v.  Hughes,  129,  130, 
Graham  v.  Moore,  271. 
Graham  v.  Ruff,  92,  96,  125. 
Graham  v.  Spencer,  465. 
Grab  an  v.  Railroad  Co.,  639. 
Graighle  v.  Notnagel,  221. 
Grainberg  v.  Longermau,  78. 
Grand  Gulf  R.  R.  &  Banking  Co.  v. 

Conger,  30,  139. 
Granger  v.  Adams,  563. 
Grangers'  Insurance  Co.  v.  Turner. 

34,  57. 
Granite  Bank  v.  Treat,  443. 
Grant  v.  Deuel,  128. 
Grant  v.  Lloyd,  592. 
Grant  v.  Reinhart,  680,  690. 
Grant  v.  Shaw,  199,  268,  272. 
Graves  V.  Cole,  113^  481. 
Graves  v.  Cooper,  624. 
Graves  v.  Walker,  364. 
Gray  v.  Badgett,  372. 
Gray  v.  Biscoe,  31. 
Gray  v.  Blackwell,  53. 
Gray  v.  Del.  &  Hudson  Canal  Co., 

377,  651. 


TABLE    OF    CASES. 


xlvii 


The  references  are  to  xxiges. 


Gray  v.  Griffith,  72. 
Gray  v.  M'Lean,  519.  ■ 
Gray  v.  McNeal.  443. 
Gray  v.  Neill,  51. 
Gray  v,  Perkins,  514,  670. 
Gray  v.  Reveille,  443. 
Gray  v.  Steedman,  110,  143. 
Gray's  Adm'r  v.  Patton's  Adm'r,  567. 
Grayson  v.  Veeche,  300. 
Great  Western  Mining  Co.  v.  Wood- 
mas,  151. 
Greaves  v.  Newport.  700. 
Grebe  v.  Jones,  86,  246. 
Greely  v.  Reading,  10,  567. 
Green  v.  Bank,  334,  453. 
Green  v.  Beck  with,  25,  37,  30. 
Green  v.  Doughtj*,  306. 
Green  v.  Farmers'  &  Citizens'   Bank, 

283. 
Green  v.  Farrar,  496. 
Green  v.  Hill,  4,  426,  433. 
Green  v.  Kelley,  536. 
Green  v.  Neal's  Lessee,  438. 
Grsen  v.  Nelson,  373. 
Green  v.  Pyne,  184.  233. 
Green  v.  Robertson,  519. 
Green  v.  Vanbuskirk,  501. 
Green  v.  Watson,  501,  503. 
Greene  v.  Greene,  18,  28. 
Greene  v.  Remington,  329. 
Greene  v.  Tripp,  98,  341,  360,  628. 
Greenfield  v.  Wilson,  661. 
Greenleaf  v.  Perrin,  271,  385. 
Greennian  v.  Fox,  569,  644. 
Greentree  v.  Rosenstock,  372, 451,  653. 
Greenvault  v.  F.  &  M.  Bank,  3,  121, 

123,  158,  429,  479. 
Green  way  v.  James,  557. 
Greenway  v.  Mead,  122. 
Green  well  v.  Green  well,  41. 
Greenwood  v.  Bo3'd,  322. 
Greer  v.  Cagle,  422. 
Greer  v.  Higgins.  579. 
Greer  v.  Powell,  619. 
Greer  v.  Rowley,  316,  819,  336. 
Gregg  v.  Bank,  320. 
Gregg  V.  Nilson,  161. 
Gregg  V.  Thompson,  440,  444 


Gregory  V.  Adler,  544. 

Gregory  v.  Clark.  346. 

Gregory  v.  Filbeck,  181. 

Gregory  v.  Higgins,  278. 

Gregory  Grocery  Co.  v.  Young,  565. 

Greiner  v.  Prendergast,  75. 

Grever  v.  Culver,  364. 

Grewell  v.  Henderson,  253. 

Grey  v.  Sheridan,  etc.,  Co.,  394. 

Grey  v.  Young,  470. 

Gribbon  v.  Freel,  153,  217,  418. 

GriefT  v.  Betterton,  217. 

Griel  v.  Loftiu,  339. 

Gries  v.  Black  man,  57. 

Griffin  v.  Helmbold,  289. 

Griffis  v.  Swick,  135. 

Griffith  V.  Bailey,  499,  504 

Griffith  y  Langsdale,  509. 

Griifith  v.  Robinson,  132. 

Griffith  V.  Smith,  221. 

Griffith  V.  Stock muller,  636. 

Grigg  V.  Bank,  544. 

Grignon's  Lessee  v.  Astor,  443. 

Grigsley  v.  Love,  554. 

Grimes  v.  Bowerman,  686,  688,  693. 

Grimes  v.  Farrington,  488. 

Grinnell  v.  Phillips,  661. 

Grissom  v.  Reynolds,  649. 

Grisvvold,  In  re,  540. 

Griswold  v.  Popham,  355. 

Griswold  v.  Sharpe,  473. 

Griswold  v.  Sundback,  667. 

Grizzard  v.  Brown,  459. 

Groat  V.  Gillispie,  35,  080. 

Grocery  Co.  v.  Records,  159. 

Groome  v.  Lewis,  289. 

Gross  V.  Goldsmith,  158. 

Grosslight  v.  Crisup,  643. 

Grosvenor  v.  Bank,  199,  301. 

Grover  v.  Buck,  91,  396. 

Grover  v.  Wakeman,  48. 

Grow  V.  Crittenden,  265. 

Grower  v.  Fletcher,  496. 

Grubbs  v.  Colter,  5,  433. 

Grubbs  v.  Ellison,  502. 

Guaranty  Trust  Co.  v.  Green  Cove 

Railroad,  587,  603. 
Guardians,  etc.  v.  Mintzer,  266. 


xlviii 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Guay  V.  Andrews,  519. 

Guckenheimer  v.  Libby,  95. 

Guerin  v.  Hunt,  158, 

Guest  V.  Ramsey,  483. 

Guild  V.  Holbrook,  272,  381. 

Guile  V.  McNanny,  105. 

Guilford  v.  Reeves,  369,  631. 

Guilford  Co.  v.  Georgia  Co.,  487. 

Guise  V.  O'Daniel,  28. 

Gulf,  etc.,  R.   Co.   V.  Ft.  Worth,  etc., 

R.  Co.,  470. 
Gum  Hardware  Co.  v.  Denison,  116. 
Gumbel  v,  Pitkin,  210,  432,  437. 
Gumble  v.  Andriis,  192. 
Gunn  V.  Howell,  361,  377,  625,  649. 
Gunn  V.  Mason,  254,  444. 
Gunst  V.  Pelham,  109,  124. 
Gunter  v.  Cobb,  233. 
Gutlierrin  v.  Hill,  96. 
Gutman  v.  Iron  Co.,  86,  90. 
Gutta  Percha  Co.  v.  Houston,  73. 
Gutterson  v.  Morse,  305. 
Gutzwiller  v.  Lackman,  194. 
Guy  V.  Lee,  70. 
Guy  V.  Pierson,  254. 
Gypsum  Co.  v.  Circuit  Judge,  214. 

H. 

Haas  V.  Shaw,  499,  501. 
Haber  v.  Nassetts,  45,  54. 
Habericht  v.  Lissak,  639. 
Habich  v.  Folger,  280,  464. 
Hacker  v.  Stevens,  19,  337. 
Hackettstown  Bank  v.  Mitchell,  187, 

427. 
Hackley  v.  Kanitz,  272,  363,  864,  371, 

382. 
Hackley's  Ex'r  v.  Swigert,  590. 
Hadley  v.  Bryars,  184,  499,  505. 
Hadley  v.  Musselmau,  162. 
Hadley  v.  Peabody,  314,  3l6. 
Haebler  v.  Bernharth,  62,  476. 
Haebler  v.  Myers,  543. 
Haflfey  v.  Miller,  263. 
Hafley  v.  Patterson,  90,  109. 
Haflick  v.  Stober,  190. 
Hagan  v.  Burch,  479. 


Hagan  v.  Campbell,  693. 

Hagan  v.  Lewis,  609. 

Hagedon  v.  Bank  of  Wisconsin,  269. 

Hagan  v.  Lucas,  514. 

Hager  v.  Adams,  509. 

Hagerstown  Bank  v.  Weckler,  508. 

Haggart  v.  Morgan,  25,  29. 

Haggerty  v,  Ward,  53. 

Haggerty  v.  Wilber,  217,  218, 330,  334. 

Hagood  V.  Hunter,  106. 

Hahn  v.  Kelly,  248. 

Hahn  v.  Salmon,  191,  397. 

Hahn  v.  Seifert,  127. 

Haight  V.  Berg,  31. 

Haiglette  v.  Leake,  44. 

Hair  v.  Lowe,  357. 

Hakanson  v.  Brodke,  667. 

Hakes  v.  Shupe,  434,  448,  451,  611. 

Halbe's  Estate.  499. 

Halbut  V.  McCulloch,  519. 

Haldeman  v.  Hillsborough  &  Cin.  R. 

R.  Co.,  12. 
Hale  V.  Chandler,  89,  121,  123,  543. 
Hale  V.  City  of  New  Orleans,  698. 
Hale  V.  Cummings,  4. 
Hale  V.  Donahue,  95. 
Hale  V.  Heaslip,  504. 
Hale  V.  Richardson,  32. 
Halett  V.  Nugent,  463. 
Haley  v.  Railroad  Co.,  319,  335,  354, 

453. 
Haley  v.  Reid,  214. 
Half  V.  Curtis,  682. 
Halfpenny  v.  Bell,  672. 
Hall  V.  Brazelton,  114,  115,  471. 
Hall  V.  Brooks,  409. 
Hall  V.  Brown,  165. 
Hall  V.  Filter  Manuf.  Co.,  336. 
Hall  V.  Forraan,  683. 
Hall  V.  Gould,  577. 
Hall  V.  Grogan,  150. 
Hall  V.  Hartwell,  500. 
Hall  V.  Howd,  443. 
Hall  V.  Magee,  258,  271. 
Hall  V.  Page.  71,  505. 
Hall  V.  Palmer,  461. 
Hall  V.  Stevenson,  207,  337,  543. 
Hall  V.  Stryker,  119. 


TABLE   OF   CASES. 


xlix 


The  references  are  to  pacies. 


Hall  V,  Walbridge,  553. 
Hall  V.  Waterbury,  170. 
Hall  V,  Williams,  267. 
Haller  v.  Pariott,  447. 
Hallett  V.  Righters,  248. 
Halley  v.  Jackson,  115. 
Halliday  v.  Sterling,  689. 
Hallock  V.  Belcher,  684. 
Hallowell  v.  Leafgreen,  257,  339. 
Halpin  v.  Barringer,  259. 
Halpine  v.  Hall,  221. 
Halsey  v.  Fairbanks,  494. 
Ham  V.  Perry,  337,  630. 
Hamble'v.  Owen,  134. 
Hambrick  v.  Williams,  60. 
Hamburg  v.  Wood,  560. 
Hamburger  v.  Carr,  364.  509. 
Hamer  v.  First  N.  Bank,  685. 
Hamilton  v.  Bryant,  527. 
Hamilton  v.  Buggy  Co.,  384. 
Hamilton  v.  Burum,  442. 
Hamilton  v.  Fleming,  502. 
Hamilton  v.  Hill,  624. 
Hamilton  v.  Johnson,  473. 
Hamilton  v.  Knight,  93,  184. 
Hamilton  v.  Laniphear,  536. 
Hamilton  v.  Penny,  88. 
Hamilton  v.  Rogers,  276,  344,  510. 
Hamilton  Shoe   Co.    v.  Adams,    191, 

192. 
Hammett  v.  Morris,  636,  640. 
Hammond  v.  Starr,  461,  518. 
Hamnill  v.  Phenicie,  134. 
Hanaford  v.  Hawkins.  266,  372. 
Hanauer  v.  Casey,  543. 
Hanchett  v.  Bank,  187. 
Hanchett  v.  Ives,  562. 
Hanchett  v.  McQueen,  660. 
Hancock  v.  Colyer,  72,  293,  553. 
Hancock  v.  Henderson,  205,  232. 
Hancock  Ins.  Co.  v.  Moore,  72. 
Handy  v.  Brong,  76. 
Handy  v.  Dobbin,  199,  494. 
Handy  v.  Insurance  Co.,  458. 
Handy  v.  Pfister,  13. 
Hanes  v.  Tiffany,  563. 
Hankinson  v.  Page,  209. 
Hanks  v.  Andrews,  42, 
D 


Haun  V.  Ruse.  136. 

Hanna  v.  Bry,  289. 

Hanna  v.  Davis,  607. 

Hanna  v.  Guy,  590. 

Hanna  v.  Lauring,  377. 

Hanna  v.  Loring,  75. 

Hannah  v.  Moberly  Bank,  329. 

Hannahs  v.  Felt,  12,  505. 

Hanness  v.  Smith,  700. 

Hannibal  &  St.  Joe  R.  R  Co.  v.  Crane, 

16. 
Hanover  \.  Turner,  28. 
Hanover  Ins.  Co.  v.  Connor,  322, 581. 
Hanover  N.  Bank  v.  Stebbins,  27. 
Hansen  v.  Butler,  292. 
Hansen  v.  Morris,  77. 
Hansford  v.  Perrin,  519. 
Hanson  v.  Doherty,  486. 
Hanson  v.  Dow,  160,  479. 
Hanson  v.  Graham,  27,  30. 
Hanssler  v.  Bank,  687. 
Haralson  v.  Campbell,  3. 
Haralson  v.  Newton,  51,  104,  434. 
Harbert  v.  Gormley,  127,  137. 
Harbmson  v.  McCartney,  190,  285. 
Harbough  v.  Albertson,  128. 
Hardcastle  v.  Hickman,  609. 
Hardeman  v.  Morgan,  12,  672,  675. 
Hardesty  v,  Campbell,  483, 
Hardie  v.  Colvin,  42,  81. 
Hardie  v.  Lee,  437. 
Haidin  v.  Boyd,  66. 
Hardin  v.  Lee,  113. 
Hardin  v.  Sisson,  394. 
Harding  v.  Coburn,  566. 
Harding  v.  Larkin,  698. 
Hardware  Co.  v.  Deere,  540. 
Hardy  v.  Colby,  98,  298. 
Hardy  v.  Tilton,  190. 
Hardy  v.  Tiabue,  106. 
Hargedine  v.  Van  Horn;  82,  93,  110, 

122. 
Harger  v.  Spofford,  12,  675. 
Hargis  v.  Morse,  117. 
Hargis  v.  Railroad  Co.,  234. 
Haris  v.  Trapp,  475. 
Harkness  v.  Hyde,  456,  457. 
Harlow  v.  Becktle,  251. 


TABLE    OF    CASES. 


TJie  references  are  to  pageb. 


Harman  v.  Hoskins,  50. 

Harman  v.  Tappenden,  692. 

Harmon  v.  Birchard,  359,  647. 

Harmon  v.  Cattle  Co.,  487. 

Harmon  v.  Moore,  496. 

Harmon  v.  Osgood,  257,  293. 

Harnden  v.  Gould,  187. 

Harney  v.  Ellis,  258. 

Harney  v.  Pealer,  615. 

Harper  v.  Bell,  492,  521. 

Harper  v.  Commercial,    etc.,    Bank, 

556. 
Harper  v,  Keyes,  136,  676. 
Harper  v.  Miller,  240. 
Harper  v.  Scuddy,  472. 
Harper  v.  Stansbrough,  195. 
Harrell  v.  Cattle  Co.,  291. 
Harrell  v.  Mexico,  352. 
Harrell  v.  Whitman,  271. 
Harriman  v.  Gray,  395. 
Harrington  v.  Fortner,  578. 
Harrington  v.  La  Roche,  292. 
Harrington  v.  La  Eocque,  298. 
Harrington  v.  Loomis,  60. 
Harrington  v.  People,  443. 
Harrington  v.  Smith,  498. 
Harris  v.  Budd,  34. 
Harris  v.  Capell,  48,  54. 
Harris  v.  Dauglierty,  13,  248. 
Harris  v.  Finberg,  681. 
Harris  v.  Gwin,  5. 
Harris  v.  Grodner,  246,  252. 
Harris  v.  Hanson,  3,  170, 225,  431,  432, 

434,  443,  446,  448,  449,  459. 
Harris  v.  Hardeman,  426. 
Harris  v.  Lester,  110. 
Harris  v;  Linnard,  482. 
Harris  v.  Meyer,  50. 
Harris  v.  Miller,  338.  339. 
Harris  v.  Peabody,  305. 
Harris  v.  Phoenix  Ins.  Co.,  307. 
Harris  v.  Russell,  193,  239. 
Harris  v.  Somerset  &  Ken.  R.  R  Co., 

319. 
Harris  v.  Tenney,  13. 
Harrison  v.  King,  61,  472. 
Harrison  v.  Mock,  194. 
Harrison  v,  Pender,  540. 


Harrison  v.  Eenfro,  622. 

Harrison  v.  Thurston,  614. 

Harrison  v.  Trader,  10,  543. 

Harrison  Works  v.  Hosig,  466. 

Harrow  v.  Lyon,  614,  621. 

Hart  V.  Anthony,  282. 

Hart  V.  Barnes,  62,  87. 

Hart  V.  Chalker,  563. 

Hart  V.  Dahlgreen,  364. 

Hart  V.  Jones,  83. 

Hart  V.  Kanady,  477. 

Hart  V.  Sansom,  422,  436. 

Hart  V.  Seymour,  220,  581. 

Hart  V.  Smith,  461. 

Hart  V,  Svvayne,  592,  593. 

Hartford  v.  Jackson,  188. 

Hartford  Quarry  Co.  v.  Pendleton, 

528. 
Hartle  v.  Long,  -292. 
Hartley  v.  Tepley,  303. 
Hartman  v.  01  vera,  259,  274,  640. 
Harvard  College  v.  Gore,  28,  29. 
Harvey  v.  Great  Northern  R.  Co.,  283. 
Hassall  v.  Wilcox,  603. 
Haseltine  v.  Ausherman,  482. 
Haselton  v.  Monroe,  643. 
Haskell  v.  Andrews,  511. 
Haskell  v.  Bartlett,  252. 
Haskell  v.  Haskell,  265,  293. 
Hassie  v.  Congregation,  77. 
Hastie  v.  Kelly,  494. 
Has  well  v.  Parsons,  498. 
Hatch  v.  Bailey,  188. 
Hatch  V.  Fowler,  396. 
Hatch  V.  Lincoln,  188. 
Hatchett  v.  Blanton,  193. 
Hathaway  v,  Davis,  71,  487. 
Hathaway  v.  Larrabee,  206,  233,  241. 
Hathaway  v.  Russell,  373. 
Haussnecht  v.  Claypool,  438. 
Haust  V.  Burgess,  259,  264. 
Havely  v.  Lowry,  394. 
Haven  v.  Low,  188,  268. 
Haven  v.  Snow,  240. 
Haven  v.  Wentworth,  271,  385. 
Havens  v.  Gard,  598. 
Havis  V.  Taylor,  32,  41. 
I  Havves  v.  Clement,  90,  548. 


TxlBLE    OF    CASES. 


li 


Tlie  references  are  to  pages. 


Hawes  v.  Waltliani,  276,  277. 
Hawkins  v.  Ga.  Bank,  634 
Hawkins  v.  Graham,  637. 
Hawkins  v.  Hewitt,  209. 
Havvley  v.  Atlierton.  277. 
Hawley  v.  County  of  Litchfield,  312, 
Hawley  v.  Dehnas,  104,  105. 
Hawley  v.  Mead,  254. 
Hawthorn  v.  St.  Louis,  316. 
Hawthorn  v.  Unthank,  625. 
Hawthorne  v.  Smith,  504. 
Hayden  v.  McMillan,  261. 
Hayden  v.  Nat  Bank  of  N.  Y.,  275, 

353. 
Hayden  v.  Sample,  680,  688,  695,  697. 
Haydon  v.  Bank  of  Wisconsin,  289, 
Hayer  v.  Alexander,  195. 
Hayes  v.  Gillispie,  235. 
Hayes  v.  Josephi,  531. 
Haygood  v.  Huntei',  106. 
Hayman  v.  Hallam,  659. 
Haynes,  Ex  parte,  92.  97,  119,  121. 
Haynes  v.  Cowen.  117. 
Haynes  v.  Gates,  645. 
Haynes  v.  Jones,  397. 
Haynes  v.  Knowles,  183,  239,  507. 
Haynes  v.  Morgan,  399. 
Haynes  v.  Powell,  34. 
Haynes  v.  Small,  232,  656. 
Haynes  v.  Thompson,  556. 
Hays  V.  Anderson,  374. 
Hays  V.  Lycoming  Fire  Ins.  Co.,  336. 
Hayward  v.  George,  181,  662. 
Haywood  v.  Collins,  15,  254,  432,  437, 

442.  443,  445. 
Haywood  v.  Cuoningham,  14. 
Haywood  v.  Hardie,  413. 
Haywood  v.  McCrory,  253,  254,  433, 

445,  446. 
Haywood  v.  Russell,  252. 
Hazard  v.  Franklin,  263. 
Hazelrigg  v.  Donaldson,  491,  492,  521. 
Hazlitt  V.  Morrow,  462. 
Hazzard  v.  Agricultural  Bank,  24 
H.  B.  Claflin  Co.  v.  Feibleman,  536. 
Head  v.  Daniels,  117,  129,  234 
Head  v.  Merrill,  318,  320,  463. 
Heagle  v.  Wheeland,  667. 


Healey  v.  Butler,  258,  376,  640. 

Hearn  v.  Adamson.  356. 

Hearn  v.  Crutcher,  265,  288,  856. 

Hearn  v.  Foster,  300. 

Hearne  v.  Keith,  73,  272. 

Heath  v.  Keyes,  170. 

Heath  v.  Lent,  680,  684 

Heaverin  v.  Robinson,  536. 

Hebel  v.  Amazon  Ins.  Co.,  316,  351, 

453. 
Hecht  V.  Green,  305. 
Hecksher  v.  Trotter,  71. 
Heege  v.  Fruin,  258,  263. 
Hefferman  v.  Grymes,  377. 
Heflfner  v.  Gunz,  456,  459. 
Heffner  v.  Lewis,  190. 
Heibner  v.  Chave,  317. 
Heideman,  etc.  v.  Urner,  42. 
Heidenback  v.  Schland,  26. 
Heidenheimer  v.  Johnston,  541. 
Heidenheimer  v.  Sides,  690. 
Heimoth  v.  Le  Suer,  635. 
Heimstedt  v.  German  Bank,  257. 
Heineman  v.  Schloss,  77. 
Heller  v.  Stremmel,  314 
Hell  man  v.  Fowler,  97,  695. 
Helm  V.  Gray,  560. 
Helme  v.  Pollard,  381. 
Helmer  v.  Rehm,  621. 
Hemenway  v.  Wood,  499. 
Heminway  v.  Saxton,  219. 
Hemmenway  v.  Pratt,  271. 
He.mmenway  v.  Wheeler,    213,    395, 

427. 
Hemming  v.  Zimmerchitte,  382. 
Hemshein  v.  Levy,  433. 
Hencke  v.  Johnson,  672. 
Henderson  v.  Alabama  Gold  Ins.  Co., 

77,  300. 
Henderson  v.  Bliss,  539. 
Henderson  v.  Cashman,  276. 
Henderson  v.  Drace,  148,477,481,483. 
Henderson  v.  Drake,  113. 
Henderson  v.  Graham,  154. 
Henderson  v.  Hamer,  5. 
Henderson  v.  Henderson,  31. 
Henderson  v.  Insurance  Co.,  339. 
Henderson  v.  Mahill,  383. 


lii 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Heudcrson  v.  Overton,  595. 

Henderson  v.  Schaas,  195. 

Henderson  v.  Stetter,  64,  548. 

Henderson  v.  Thornton,  469. 

Henderson  v.  Travis,  484. 

Hendrick  v.  Cleveland,  442. 

Hendrix  v.  Cawthorn,  5. 

Hennen  v.  Forget,  379. 

Hennessey  v.  Farrell,  262. 

Henny  v.  Patt,  377. 

Henrie  v.  Sweazy,  91,  424,  433. 

Henry  v.  Bew,  262,  365,  369. 

Henry  v.  Cawthorn,  182. 

Henry  v.  Gold  Park  Mining  Co.,  521, 

526. 
Henry  v.  Gregory,  468. 
Henry  v.  McClure,  469. 
Henry  v.  Mitchell,  206,  207,  233. 
Henry  v.  Murphy,  257. 
Henry  v.  Quackenbush,  188,  220,  224. 
Henry  v.  Sweazy,  426. 
Henry  v.  Wilson,  271. 
Heusley  v.  Rose,  686. 
Hepp  V.  Glovei-,  496. 
Herbert  v.  Hanrick,  7. 
Herbert  v.  Herbert,  25. 
Herbert's  Heirs  v.  Babin,  534. 
Her  don  v.  Forney,  678. 
Hereth  v.  Yandes,  501. 
Hergman  v.  Dettlebach,  202. 
Hermann  v.  Amedee,  465,  486,  487. 
Herndon  v.  Givens,  336. 
Herndon  v.  Pickard,  208. 

Hernsheim  v.  Levy,  47,  485. 

Herring  v.  Hoppock,  178,  220. 

Hershfield  v.  Claflin,  182,  573,  618. 

Hershfield  v.  Lowenthal,  44,  50. 

Hershy  v.  Clarksville  Institute,  555. 

Hervey  v.  Champion,  10,  544. 

Herzberg  v.  Warfield,  580. 

Hess  V.  Bower,  98. 

Hess  V.  Sliorb,  292. 

Hewes  v.  Cooper,  515. 

Hewes  v.  Parkman,  224,  505. 

Hewitt  V.  Durant,  209,  619. 

Hewitt  V.  Wagar  Lumber   Co.,  320, 
363,  368,  384. 

Hewitt  V.  Wheeler,  267. 


Hewson  v.  Tootle,  559. 

Heye  v.  Moody,  213,  544. 

Heyn  v.  Farrar,  471. 

Hey  ward  v.  Manufacturing  Co.,  338, 

374. 
Hexter  v.  Clifford,  639. 
Hiatt  V.  Bulleue,  579. 
Hicks  V.  Chapman.  293. 
Hibbard  v.  Clark,  313,  372. 
Hibbard  v.  Everett,  368. 
Hibbard  v.  Zenor,  210,  563. 
Hibbs  V.  Blair,  144. 
Hichins  v.  Lyon,  606. 
Hickey's  Lessee  v.  Stuart,  450. 
Hickman  v.  Cruise,  495. 
Hickman  v.  Flenoriken,  105. 
Hickok  V.  Buell,  562. 
Hicks  V.  Gleason,  337. 
Hickson  v.  Brown,  24, 
Higdon  V.  Vaughan,  519. 
Higgins  V.  Grace,  613,  614,  621. 
Higgins  V.  McConnell,  208. 
Higgins  V.  Mansfield,  684. 
Higgins  V.  Whitney,  170. 
Higgins  Carpet  Co.  v.  Hamilton,  181. 
High  V.  Bank,  639. 
High  V.  Wilson,  170. 
Hightower  v.  Slaton,  314. 
Hilbourn  v.  Woodworth,  437. 
Hildreth  v.  Fitts,  222. 
Hill  V.  Baker,  6. 
Hill  V.  Beach,  182,  288. 
Hill  V.  Bell,  483. 
Hill  V.  Bond,  97,  119,  472. 
Hill  V.  Child,  555. 
Hill  V.  Culan,  487. 
Hill  V.  Cunningham,  473. 
Hill  V.  Faison,  253. 
Hill  V.  Figley,  49. 
Hill  V.  Harding,  5,  521,  5  1,  527. 
Hill  V.  Hunnewell,  114,  530. 
Hill  V.  Kroft,  279. 
Hill  V.  La  Crosse  &  M.  R.  Ry.  Co., 

287,  312. 
Hill  V.  Loomis,  511. 
Hill  V.  Merle,  527. 
Hill  V.  Moore,  122. 
Hill  V.  Pride,  443. 


TABLE   OF    CASES. 


liii 


The  references  are  to  pages. 


Hill  V.  Rushing,  144. 

Hill  V.  Scales,  515. 

Hill  V.  Whitney,  75.  484. 

Hill  V.  Wiggins,  184. 

Hillard  v.  Wilson,  217,  2'i2. 

Hiller  v.  Lamkin,  4?.!,  603. 

Hills  V.  Moore,  5. 103J13, 147, 487, 521. 

Hillyer  v.  Biglow,  462,  48-3. 

Hilton  V.  Ross,  86,  93,  433,  514. 

Himstedt  v.  German  Bank,  266. 

Hinckley  v.  Bridgham.  404. 

Hinckley  v,  Williams.  264. 

Hinds  V.  Fagebank,  44,  107. 

Hinds  V.  Keith,  577. 

Hinds  V.  Miller,  348,  623. 

Hine  v.  Dodd,  577. 

Hines  v.  Chambers.  16,  169,  170,  434. 

Hines  v.  Kimball,  82,  558. 

Hinkle  v.  Currin,  388. 

Hinman  v.    Opera  Co.,  182. 

Hinman  v.  Ruslimore,  446^ 

Hinsdill  v.  Saflford,  378. 

Hinzie  v.  Moody,  89. 

Hirsch  v.  Hutchinson,  54. 

Hirsh  V.  Thurber,  59,  160. 

Hirtli  V.  Pfeifle,  276,  639. 

Hisler  v.  Carr,  476. 

Hitchcock  V.  Aicken,  451. 

Hitchcock  V.  Egerton,  199. 

Hitchcock  V.  Galveston  Wharf  Co., 

330. 
Hitchcock  V.  Giddings,  592,  595. 
Hitchcock  V.  Hahn,  243. 
Hitchcock  V.  Holmes,  220. 
Hitchcock  V.  Langto,  388. 
Hitchcock  V.  Miller,  263. 
Hitchcock  V.  Watson,  625. 
Hite  7,  Fisher,  353. 
Hitne:  v.  Boutilier.  98. 
Hitsman  v.  Garrard,  82,  110. 
Hoag  V.  Hoag,  260  294. 
Hoag  V.  Howard,  578,  617. 
Hoagland  v,  Wilson,  150. 
Hoar  V.  Marshall,  292,  293. 
Hobart  v.  Jouvett,  268. 
Hobbs  V.  Carr,  197. 
Hobson  V.  Emporium  Real  Estate  & 

Manuf.  Co.,  4,  424,  426,  433,  606. 


Hobson  V.  Hall,  514 

Hobson  V.  Hill,  350,  373. 

Hobson  V.  Stevenson,  302. 

Hochstadler  v.  Sam,  71,  89. 

Hockaday  v.  Sallee,  203. 

Hodge  V.  Norton,  529. 

Hodgeman  v.  Barker,  90,  235, 468, 541. 

Hodges  V.  Baneham.  7. 

Hodges  V,  Graham,  342. 

Hodo  V.  Benecke,  15. 

Hodson  V.  McConnell,  298. 

Hodson  V.  Tootle,  486. 

Hodson  V.  Van  Fossen,  468. 

Hoffman  v.  Fitzwilliam,  350. 

Hoflfman  v.  Hill,  503. 

Hoffman  v.  Imes,  617. 

Hoffman  v.  Simon,  623. 

Hoffman  v.  Wetherel,  269,  270,   288, 

291. 
Hoffner  v.  Gunz,  434. 
Hoge  V.  Norton,  491. 
Hoggett  V,  Emerson,  30. 
Hoghtaling  v.  Osborn,  162. 
Hoisington  v.  Huff,  504, 
Holbrook  V.  Baker,  505. 
Holbrook  v.  Peters,  49. 
Holbrook  v.  Waters,  292. 
Holcomb  v.  Foxworth,  678. 
Holcomb  V.  Lumber  Co.,  404. 
Holcomb  v.  Winchester,  75,  393. 
Holden  v.  Garrett,  578. 
Holek  v.  Insurance  Co.,  341,  359. 
Holland  v.  Adair,  377,  437. 
Holland  v.  Anderson,  58. 
Holland  v.  Bank,  488. 
Holland  v.  Drake,  573. 
Holland  v.  Railroad,  325,  513. 
Holland  v.  Smit,  651,  653. 
Holland  v.  Smith,  278. 
Holland  v.  White,  488. 
Holliday  v.  Cohen,  46,  603. 
Holliday  v.  Mansker,  27,  613. 
Holliday  v.  Ward,  7. 
Holliman  v.  Carroll,  661. 
Hollingshead,  In  re,  88. 
Hollingsworth  v.  Atkins,  681. 
Hollingsworth  v.  Barbour,   249,    250, 

428. 


liv 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Hollingsworth  v.  Fitzgerald,  644 

Hollister  v.  Goodall,  220. 

Holloway  v.  Herryford,  473. 

Holly  V.  Huggeford,  195. 

Holman  v.  Fisher,  292,  549. 

Holman  v.  Kerr,  60. 

Holmes  v.  Barclay,  75. 

Holmes  v.  Cooper,  613. 

Holmes  v.  Newcaster,  288. 

Holmes  v.  Remson,  195,  645. 

Holmes  v.  Russell,  153. 

Holmes  v.  Weaver,  698. 

Holmes  Organ  Co.  v.  Petitt,  77. 

Holsten  Man.  Co.  v.  Lea,  90,  103. 

Holt  V.  Babcock,  302. 

Holt  V.  Burbank,  396. 

Holt  V.  Dollarhide,  274. 

Holt  V.  Libby,  299,  384. 

Holt  V.  Moore,  575. 

Holtby  V.  Hodgson,  275. 

Hoi  ton  V.  Southern  Pac.  R.  Co.,  365. 

Holyoke  v.  Adams,  527. 

Holzman  v.  Martinez,  160. 

Homan  v.  Brinkerhoff,  137,  476,  490, 

529. 
Home  V.  Ould,  279. 
Home  Mutual  Ins.   Co.  v.  Gamble, 

649. 
Home  Protection  v.  Richardson,  336. 
Homer  v.  Falconer,  92. 
Hone  V.  Henrique,  194. 
Hong  Kong,  etc.  v.  Campbell,  362. 
Hooper  v.  Hills,  304. 
Hoot  V.  Spade,  698. 
Hooton  V.  Gamage,  644. 
Hope  V.  Blair,  549,  577. 
Hopewell  Mills  v.  Bank,  189. 
Hopkins  v.  Dinan,  274. 
Hopkins  v.  Hastings,  50. 
Hopkins  v.  Nichols,  104,  105,  106, 107. 
Hopkins  v.  Ray,  231. 
Hopkirk  v.  Bridges,  16,  45,  422,  434. 
Hopper  V.  Fisher,  253. 
Hopson  V.  Dinan,  263. 
Horn  V.  Bayard,  681. 
Horn  V.  Booth,  297. 
Horn  V.  Cole,  498. 
Home  V.  Mitchell,  132. 


Home  V.  Stevens,  303. 
Horner  v.  Harrison,  681. 
Hornick  Drug  Co.  v.  Lane,  483. 
Horton  v.  Beckman,  155. 
Horton  v.  Buffiugton,  580. 
Horton  v.  Grant,  265. 
Horton  v.  Hubbjird,  659. 
Horton  v.  Miller,  117,  473,  475. 
Horton  v.  Monroe,  228,  233,  236,  237,. 

245. 
Horton  v.  Williams,  50. 
Hosea  v.  McClure,  48,  193,  469. 
Hoshaw  V.  Gullett,  519. 
Hoskins  v.  Johnson,  276. 
Hoskins  v.  Wliite,  65,  139,  683. 
Hosmer  v.  Wallace,  496. 
Hotchkiss  v.  McVicker,  395. 
Houghton  V.  Ault,  25. 
Houghton  V.  Davenport,  188, 496. 
Houghton  V.  Lee,  322. 
House  V.  Bait,  etc.,  R.  Co.,  506,  50& 
House  V.  Hamilton,  39. 
Houseman  v.  Cargo  of  the  Schooner 

North  Carolina.  525. 
Housemans  v.  Heilbron,  623. 
Houston  V.  Belcher,  137. 
Houston  V.  Porter,  376,  423. 
Houston  V.  Wolcott,  377,  648. 
Houston  V.  Woolley,  483. 
How  V.  Field,  260,  361. 
Howard  v.  Card,  268. 
Howard  v.  Clark,  554,  656. 
Howard  v.  Crawford,  388. 
Howard  v.  Daniels,  143,  206,  231. 
Howard  v.  Farr,  501. 
Howard  v,  Mauderfield,  139,  142. 
Howard  v.  McLaughlin,  648,  653. 
Howard  v.  North,  592. 
Howard  v.  Oppenheimer,  106,  478, 
Howard  v.  Whittemore,  395. 
Howard  v.  Williams,  170,  223,  333. 
Howard  Ass'n  v.  Reading  R.  Co.,  503. 
Howard  Iron  Co.  v.  Tillman,  331. 
Howe  V.  Starkweather,  214. 
Howe  V.  Stevenson.  420. 
Howe  V.  Tefft.  171,  643. 
Howell  v.  Judge,  96. 
Howell  V.  Kingsbury,  97,  100. 


TABLE    OF   CASES. 


Iv 


The  references  are  to  pages. 


Howell  V.  Muskegon  Ct.  Judge,  154. 

Hovver  v.  Falconer,  14 

Ho%ver  v.  Ulrich,  640. 

Howes  V.  Spicer,  217,  656. 

Howes  V.  Waltham,  553. 

Howeth  V.  Mills,  683. 

Howitt  V.  Blodgett,  195. 

Howland  v.  Jenal,  351. 

Howland  v,  Knox,  580. 

Howland  v.  Spencer,  109,  281. 

Hoxie  V.  Carr,  305. 

Hoy  V.  Eaton,  239. 

Hoyt  V.  Christie,  292. 

Hoyt  V.  Robinson,  277,  552. 

Hoyt  V.  Russell,  577. 

Hoyt  V.  Swift,  371,  385. 

Hozeman  v.  Rose,  121. 

Hubbard  v,  Allen.  73. 

Hubbard  v.  President,  etc.,  572. 

Hubbard  v.  Savage,  563. 

Hubbardston,  etc.,  Co.  v.  Covert,  84. 

Hubbell  V.  Kingman,  617,  633. 

Hubbell  V.  Rhinesmith.  245. 

Huber  v.  Abbott,  3. 

Hubert  v.  Bronson,  303. 

Hucherson  v.  Ross,  476. 

Hudgens  v.  Hudgens,  593. 

Hudkins  v.  Haskins.  98. 

Hudson  V.  Hunt,  277. 

Huff  V.  Hutchinson,  491, 

Huffman  v.  Hardeman,  109. 

Huffman  v.  Templeton,  299. 

Hugg  V.  Booth,  271. 

Hughes  V.  Bank,  639. 

Hughes  V.  Brooks,  680. 

Hughes  V.  Hatchett,  406. 

Hughes  V.  Kelly,  180. 

Hughes  V.  Lapice,  240. 

Hughes  V.  ]\Iartin,  108, 

Hughes  V.  :Mont,v,  649, 

Hughes  V,  Sprague,  300. 

Hughes  V.  Stinnett,  108,  476. 

Hughes  V.  Tenuison,  217,  524 

Hull  V,  Blake.  645. 

Hulley  V.  Chedic,  6, 

Huls  V,  Buntin,  445, 

Hume  V,  Conduitt,  648. 

Humes  v.  Scruggs,  43. 


Humphrey  v.  Matthews,  74 

Humphrey  v.  Warren.  3G0. 

Humphrey  v.  Wood,  15. 

Humphreys  v.  Pratt,  174 

Hunt  V.  Coon,  384 

Hunt  V,  Ely,  278, 

Hunt  V.  Gilraore,  672. 

Hunt  V.  Hapgood,  443. 

Hunt  V.  Hunt,  27,  187, 

Hunt  V.  Johnson,  422,  431,  434 

Hunt  V.  Xorris,  4. 

Hunt  V.  Stevens,  285,  289. 

Hunt  V.  Strew,  98. 

Hunt  V,  Wickliffe,  251,  252. 

Hunter  v.  Brown,  519, 

Hunter  v.  Case,  261. 

Hunter  v.  Ferguson,  43. 

Hunter  v.  Ladd,  132. 

Hunter  v,  Martin,  617, 

Hunter  v.  Peaks,  109,  401. 

Hunter  v,  Soward,  52, 

Hunter  v.  Turnpike  Co.,  165, 

Huntington  v,  Blaisdell,  213,  895. 

Huntington  v,  Risden,  243,  265. 

Huntley  v.  Stone,  259.  289. 

Huntress  v,  Burbank,  632. 

Huot  V.  Ely,  258,  328,  392. 

Hurd  V,  Barnhart,  685, 

Hurd  V,  McClellan,  71. 

Hurd,  Matter  of,  31. 

Hurlburt  v.  Hicks,  287,  288, 

Hurlbut  V,  Hardenbrook,   222,    690, 

691, 
Hurlock  V,  Reinhardt,  657. 
Hurn,  Ex  parte,  296, 
Hurst  V.  Fire  Ins.  Co.,  273,  321. 
Hurst  V.  Hurst,  617. 
Hurt  V.  Halm,  62. 
Hurt  V.  Redd,  10,  563. 
Hurtgen  v,  Kantrowitz,  73. 
Huseman  v.  Sims,  498, 
Hussey  v.  Thornton,  580. 
Huswell  V,  Parsons,  499, 
Hutcheson  v,  Powell,  400,  499,  612. 
Hutcheson  v,  Ross,  129, 
Hutchins  v.  Brown,  240, 
Hutchins  v.  Evans,  278. 
Hutchins  v.  Hawley,  271,  384 


Ivi 


TABLE    OF   CASES. 


The  references  are  to  x>ages. 


Hutchins  v,  Sprague,  304. 
Hutchinson's  Appeal,  364. 
Hutchinson  v.  Bidwell,  189. 
Hutchinson  v.  Eddy,  646. 
Hutchin^n  v.  Lamb,  75. 
Hutton  V.  Wetherald,  76. 
Huxley  v.  Harrold,  443,  564,  607. 
Hyde  v.  Adams,  83,  110. 
Hyde  v.  Nelson,  484, 
Hynds  v.  Wynn,  497. 
Hynson  v.  Taylor,  75. 

I. 

Ide  V.  Fassett,  394. 

Ide  V.  Harwood,  201.  j 

Idler  V.  Hasche,  649. 

Iliflf  V.  Arnot,  391,  510. 

Illinois  Central,  etc.  t.  Brooks,  356. 

Illinois  Central  R.  Co.  v.  Cobb,  324. 

Illinois  Central  R.  Co.  v.  Smith,  325. 

Illinois  Central  R.  Co.  v.  Weaver,  652. 

Illinois  Glass  Co.  v.  Holman,  494,  495. 

Ilsley  V.  Nichols,  218. 

Imperial  Roller  Milling  Co.  v.  First 

N.  Bank,  685. 
Indianapolis  Bank  v.  Armstrong,  281. 
Indianapolis   &   St.  Louis  R.  Co.  v. 

Horst,  440. 
Ingalls  V.  Dennett,  373. 
Ingalls  V.  Herrick,  197. 
Inge  V.  Cain,  501. 
Ingersoll  v.  Kirby,  347. 
Ingersoll  v.  Mongam.  592,  594 
Ingle  V.  McCurry,  254. 
Inglehart  v.  Moore,  279. 
Ingraham  v.  Geyer,  195. 
Ingraham  v.  Phillips,  468. 
Inhabitants  of  Turner  v.  Inhabitants 

of  Buckfleld,  28. 
Inman  v.  Allport,  86,  119,  441. 
Inman  v.  Stratton,  491,  521. 
Inslee  v.  Lane,  88,  196. 
Insurance  Co.  v.  Andrews,  71. 
Insurance  Co.  v.  Friedman,  319,  344, 

364. 
Insurance  Co.  v.  Hallock,  165. 
Insurance  Co.  v.  Hirsh,  365. 


Insurance  Co.  v.  Swineford,  458. 
Insurance  Co.  v.  Wager,  3. 
Insurance  Co.   of   Pennsylvania    v. 

Phoenix  Ins.  Co.,  298. 
International  Bank  v.  Monteath,  76. 
Iosco  Savings  Bank  v.  Barnes,  494. 
Ireland  v.  Webber,  613. 
Iron  Cliffs  Co.  v.  Lahais,  356,  360, 

376. 
Iron  Co.  V.  Black,  189. 
Irvin   V.  Howard,  5,  86,  87,  106,  111, 

148,  471,  477,  522. 
Irving  v.  Edringtou,  83. 
Irwin  V.  Bank,  113. 
Irwin  V.  Evans,  81,  113,  483. 
Irwin  V.  McKechnie,  641,  649. 
Irwin  V.  Taylor,  501. 
Isabelle  v.  Iron  CliflFs  Co.,  650. 
Isham  V.  Ketchum,  540. 
Ivens  V.  Ivens,  375. 
Ives  V.  Bartholomew,  691, 
Ives  V.  Curtis,  39. 
Ives  V.  Vanscovoc,  372. 
Ivy  V.  Caston,  93. 

J. 

Jackman  v.  Anderson,  613. 

Jacks  V.  Bigham,  499. 

Jackson  v.  Bain,  485. 

Jackson  v.  Babcock,  446. 

Jackson  v.  Bank  of  the  United  States, 

3,26. 
Jackson  v.  Brown,  165, 
Jackson  v.  Burgott,  577. 
Jackson  v.  Burke,  124. 
Jackson  v.  Chamberlain,  578,  616. 
Jackson  v.  Cornell,  55. 
Jackson  v.  Esty,  442. 
Jackson  v.  Given,  577, 
Jackson  v,  Henry,  577. 
Jackson  v,  Johnson,  5. 
Jackson  v.  Lahee,  290. 
Jackson  v.  Perry,  25, 
Jackson  v.  Post,  578. 
Jackson  v.  St.  Louis,  etc.,  R.  Co.,  635. 
Jackson  v.  Sharp,  577. 
Jackson  v,  Shepard,  85. 


TABLE   OF   CASES. 


Ivii 


TJie  references  are  to  pages. 


Jackson  v.  Shipman,  80. 

Jackson  v.  Smith,  127. 

Jackson  v.  Sprague,  251. 

Jackson  v.  Stanley,  139,  147,  148,  477. 

Jackson  v.  Terry,  577. 

Jackson  v.  Van  Dal  f sen,  577. 

Jackson  v.  Walsh,  577. 

Jackson  v.  Walsvvorth,  31. 

Jackson  v.  Warwick.  134,  135,  477. 

Jackson  v.  Willard,  199. 

Jackson's  Appeal,  605. 

Jackson's  Ex'rs  v.  Lloyd,  633. 

Jacob  V.  United  States,  105. 

Jacobs  V.  Crura,  692. 

Jacobs  V.  Dougherty,  523. 

Jacobs  V.  Hogan,  82,  139,  540. 

Jacobus  V.  Bank,  214,  684. 

Jacoby  v.  Gogell,  70,  75,  89. 

Jaeger  v.  Stelting,  517. 

Jaflfray  v.  Claflin,  606. 

Jaffray  v.  Jennings,  85. 

Jaff  ray  v.  TMcGehee,  303. 

Jaflfray  v.  Nast,  42. 

Jaflfray  v.  Purtell,  613. 

Jaflfray  v.  Wolfe,  5.  103. 

Jaflfray's  Appeal,  337. 

Jager  v.  Stalting,  609. 

James  v.  Dowell,  96,  482. 

James  v.  Fell  owes,  69. 

James  v.  Hall,  32. 

James  v.  Richardson,  81. 

James  v.  Stratton,  618. 

Jamison  v.  Weaver,  673. 

Janney  v.  Buell,  77. 

Jansen  v.  Mundt,  109. 

Jaquett  v.  Palmer,  288. 

Jardain  v.  Association,  507. 

Jarvis  v.  Barrett,  421,  470. 

Jasper  County  v.  Chenault,  47,  147, 

148. 
Jaycox  V.  Chapman,  137,  492. 
Jefferson  Bank  v.  Eboru.  619,  686. 
Jefferson  County  v.  Swain,  184. 
Jefferson  Co.  Sav.   Bank  v.  McDer- 

mot,  547. 
Jeffreys  v.  Coleman,  142. 
Jeffries  v.  Harvie,  228. 
Jeffries  v.  Rudloff,  240,  244. 


Jemel  v.  Howe,  40. 

Jenkins  v.  Lemonds,  061. 

Jenkins  v.  Lester,  284. 

Jenks  V.  Ludden,  510. 

Jenks  V.  Osceola  Township,»313,  314, 

316. 
Jenners  v.  Doe,  55. 
Jenness  v.  Wendell,  197. 
Jenney  v.  Delesdernier,  395. 
Jennings  v.  Joiner,  139,  678,  682. 
Jennings  v.  Summers,  262. 
Jepson  V.  International  Alliance,  328. 
Jeter  v.  Hewitt,  438. 
Jewel  V.  Howe,  105,  475. 
Jewell  V.  Mills,  661. 
Jewell  V.  Simpson,  564. 
Jewett  V.  Bacon,  277. 
Jewett  V.  Guyer,  503. 
Johann  v.  Rufener,  627,  649. 
Johns  V.  Church,  222. 
Johns  V.  Field,  372. 
Johnson  v.  Adams,  194. 
Johnson  v.  Bell,  565. 
Johnson  v.  Blanks,  637. 
Johnson  v.  Buckel,  90,  100,  106. 
Johnson  v.  Buell,  456. 
Johnson  v.  Carry,  649. 
Johnson  v.  Central  Bank,  10. 
Johnson  v.  Clark,  579. 
Johnson  v.  Day,  101,  162. 
Johnson  v.  Delbridge,  635. 
Johnson  v.  De  Witt,  466,  469,  471. 
Johnson  v.  Dexter.  203,  304,  314,  638. 
Johnson  v.  Dodge,  611. 
Johnson  v.  Edson,  11.  395,  614. 
Johnson  v.  Evans,  619. 
Johnson  v.  Farmers'  Bank,  680. 
Johnson  v.  Foran,  616. 
Johnson  v.  Gage,  377,  437. 
Johnson  v.  Geneva  Pub.  Co.,  373. 
Johnson  v.  Gilkerson,  81. 
Johnson  v.  Gorham,  337. 
Johnson  v.  GriflSth,  550. 
Johnson  v.  Hale,  107. 
Johnson  v.  Hannah,  16,  83,  111,  253, 

434. 
Johnson  v.  Hannan,  121. 
Johnson  v.  Heidenheimer,  74,  541, 573. 


Iviii 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Johnson  v.  Hersey,  321. 
Johnson  v.  Holley,  607. 
Johnson  v.  Howard,  373. 
Johnson  v.  Hunt,  195. 
Johnson  v.  Huntington,  582. 
Johnson  v.  Johnson,  80,  82,  426,  438, 

442,  446,  547. 
Johnson  v.  Layton,  253,  445. 
Johnson  v.  LaughHn,  44. 
Johnson  v.  Lowry,  89. 
Jolinson  V.  McAUister's  Assignee,  55. 
Johnson  v.  McCutchings,  347. 
Johnson  v.  Mason.  266,  288. 
Johnson  v.  Moss,  228,  280. 
Johnson  v.  Sharp,  571. 
Johnson  v.  Short,  74. 
Johnson  v.  Smith,  109. 
Johnson  v.  Steele,  488. 
Johnson  v.  Thweatt,  55. 
Johnson  v.  Weatherwax,  523. 
Johnson  v.  WilUams,  615. 
Johnson,  etc.  v.  Railroad,  667. 
Johnston  v.  Fellerman,  585. 
Johnston  v.  Ferris,  42,  87. 
Johnston  v.  Field,  52. 
Johnston  v.  Oliver,  519. 
Johnston  v.  Riddle,  325. 
Joice  V.  Poydras  De  La  Lande,  534. 
Joiner  v.  Perkins,  90. 
Jolland  V.  Stainbridge,  577. 
Jones  V.  Allen,  576. 
Jones  V.  Anderson,  137,  138,  477. 
Jones  V.  Andrews,  465. 
Jones  V.  Bank,  633. 
Jones  V.  Bank  of  Northern  Liberties, 

270. 
Jones  V.  Bivin,  488. 
Jones  V.  Blake,  64. 
Jones  V.  Byrd,  447. 
Jones  V.  Comings,  454. 
Jones  V.  Crews,  256,  259,  260,  263, 271, 

273. 
Jones  V.  Doles,  695,  696. 
Jones  V.  Etna  Ins.  Co.,  259. 
Jones  V.  Fruin,  690. 
Jones  V.  Gorham,  289. 
Jones  V.  Gregg,  72. 
Jones  V.  Gresham,  3. 


Jones  T.  Hart,  607,  60a 

Jones  V.  Hoar,  72. 

Jones  V.  Holland,  75. 

Jones  V.  Howell,  381. 

Jones  V.  Hunter,  5. 

Jones  V.  Huntington,  339. 

Jones  V.  Jones,  191,  285,  445,  514,  609. 

Jones  V.  Lake,  170. 

Jones  V.  Lamon,  691. 

Jones  V.  Langhorne,  257, 275, 367, 38a 

Jones  V.  Leake,  99. 

Jones  V.  Loree,  48. 

Jones  V.  Miller,  582. 

Jones  V.  N.  Y.  &  Erie  R.  Co.,  333, 

339. 
Jones  V.  Norris,  199. 
Jones  V.  Peasley,  520. 
Jones  V.  Peck,  106. 
Jones  V.  Pope,  121. 
Jones  V.  Reed,  443. 
Jones  V.  Rider,  280. 
Jones  V.  Roberts,  888. 
Jones  V.  Simpson,  306,  659. 
Jones  V.  Swank,  485. 
Jones  V.  Tilton,  194. 
Jones  V.  Tracy,  388,  506. 
Jones  V.  Warwick,  249. 
Jones  V.  Winchester,  283,  335. 
Jones  V.  Witter,  653. 
Jones  V.  Wood,  643. 
Jordan  v.  Dewey,  486. 
Jordan  v.  Frank,  90. 
Jordan  v.  Gallup,  394. 
Jordan  v.  Harmon,  305. 
Jordan  v.  Hazard,  472. 
Jordan  v.  Jordan,  272,  649. 
Joseph  V.  Cawthorn,  227. 
Joseph  V.  Davis.  329. 
Joseph  V.  Kronenberger,  257. 
Joseph  V.  People's  Bank,  257. 
Joseph  V.  Stein,  90. 
Joseph!  V.  Clothing  Co.,  116,  486. 
Joslln  V.  Spangler,  514,  520. 
Joy  V.  Barnhartt,  689. 
Judah  V.  Duncan,  477. 
Judah  V.  Judd,  302. 
Judah  V.  Stephenson,  422,  434. 
Judd  V.  Fox,  667. 


TABLE    OF   CASES. 


llX 


The  references  are  to  images. 


Judson  V.  Lake,  7. 

Judson  V.  Lewis.  224 

Juilliard  v.  May,  539. 

Junction  R  Co.  v.  Cleneay,  301,  654. 

K. 

Kahle  v.  Muller,  90,  471. 

Kahn  v.  Angus,  421. 

Kahn  v.  Herman,  1U9,  678. 

Kahn  v.  Kuhn,  90. 

Kalin  V.  Sippili,  450. 

Kahoon  v.  Krumpus,  503. 

Kane  v.  Clough,  368. 

Kane  v.  McCown,  249,  377. 

Kanouse  v.  Doimedy,  529. 

Kansas  City,  St.  Joe  &  C.  B.  E.  R  Co. 

V.  Campbell,  441. 
Kansas  City,  etc.,  R  Co.  v.   Gough, 

511. 
Kanunck  v.  Castleman,  224 
Kapp  V.  Teel,  279. 
Karnes  v.  Pritchard,  384. 
Karp  V.  Citizens'  Bank,  321. 
Katz  V.  Sorsby,  272. 
Kauflfman  v.  Armstrong,  47,  684,  687. 
Kauff  man  v.  Babcock,  691. 
Kauffman  v.  Jacobs,  281,  368. 
Kavanagh  v.  Beckwith,  50. 
Kean  v.  Doerner,  374. 
Kearney  v.  McCullougb,  471. 
Keai'ney  v.  Nixon,  361. 
Keating  v.  Refrigerator  Co.,  453,  510, 

637. 
Keating  v.  Spink,  250,  428. 
Keel  V.  Ogden,  364 
Keeler  v,  Keeler,  246,  458. 
Keeler  v.  Wood,  698. 
Keene  v.  Sallenbach,  51. 
Keepfer  v.  Force,  580. 
Keer  v.  Reece,  676. 
Kegel  V.  Schrenkheisen,  103,  105,  107. 
Keigher  v.  McCormick,  119. 
Keith  V.  Armstrong,  42,   49,   53,  55, 

193,  195,  482. 
Keith  V.  Levi,  340. 
Keith  V,  Losier,  536. 
Keith  V.  McDonald,  94 


Keith  V.  Stetter,  92,  434 

Keithley  v.  Pitman,  274,  800. 

Kellar  v.  Carr,  27,  29,  36. 

Kelley  v.  Sitlington,  520. 

Kelley  v.  Stanley,  150. 

Kelley  v.  Strayer,  69. 

Kelley  v.  Weymouth,  383. 

Kellogg  V.  Carrico,  250. 

Kellogg  V.  Freeman,    377,    623,    642, 

645. 
Kellogg  V.  Kimball,  68. 
Kellogg  V.  Miller,  476. 
Kelly  V.  Archer.  129,  476. 
Kelly  V.  Babcock,  259. 
Kelly  V.  Beauchamp,  695, 
Kelly  V.  Bowman,  364 
Kell}^  V.  Crapo.  195. 
Kelly  V.  Deming,  195. 
Kelly  V.  Dexter,  400. 
Kelly  V.  Dill,  499,  501,  504 
Kelly  V.  Donnelly,  90. 
Kelly  T.  Gibbs,  644 
Kelly  V.  Gil  man,  242. 
Kelly  V.  McMinniraan,  294 
Kelly  V.  Roberts,  259,  300. 
Kelly  V.  Whiting,  560. 
Kelsey  v.  Kendall,  567. 
Kelso  V.  Blackburn,  85. 
Kemp  V.  Cook,  305. 
Kemp  V.  Kennedy,  442. 
Kemp  V.  Porter,  406. 
Kempe's  Lessee  v.  Kennedy,  441. 
Kempner  v.  Rosenthal,  179. 
Kendall  v.  Brown,  472,  487,  490,  492, 

523. 
Kendall  v.  Hack  worth,  183. 
Kendall  v.  Irvine,  237. 
Kendall  v.  Morse,  394  395. 
Kendall    Shoe   Co.   v,   August,  485, 

558. 
Kendrick's  Heirs  v.  Kendrick,  239. 
Keneiick  v.  Canfield,  130. 
Keniston  v.  Stevens,  233. 
Kennedy  v.  Aldridge,  291. 
Kennedy  v.  Baillie,  27,  55,  385. 
Kennedy  v.  Brent,  12,  216.  337. 
Kennedy  v,  California  Bank,  74 
Kennedy  v.  Dillon,  123. 


Ix 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Kennedy  v.  H.  L.  &  S.  Society,  319, 

336. 
Kennedy  v.  Meacham,   684,  687,  691. 
Kennedy  v.  McKee,  193. 
Kennedy  v.  McLellan,  276,  823. 
Kennedy  v.  Merriam,  165. 
Kennedy  v.  Morrison,   108,  491,   492, 

522. 
Kennedy  v.  Pike,  233. 
Kennedy  v.  Raguet,  622. 
Kennedy  v.  Tiernay,  650. 
Kenney  v.  Georgen,  3,  86. 
Kennon  v.  Evans.  92,  125. 
Kennon  v.  Ficklin,  544,  554. 
Kenny  v.  Wallace,  485. 
Kenosha  Stove   Co.   v.    Shedd,   280, 

624,  638. 
Kenrick  v.  HufT,  607. 
Kensley  v.  Morgan,  622. 
Keppel  V.  Moore,  352. 
Kerbs  v.  Provine,  684. 
Kergin  v.  Dawson,  268. 
Kern  v.  Chicago  Ass'n,  630. 
Kern  v.  Wilson,  232. 
Kern  v.  Wyatt,  182,  251. 
Kerr  v.  Hitt,  250. 
Kerr  v.  Mount,  69. 
Kerr  v.  Smith,  121. 
Kesler  v.  St.  John,  306. 
Kessey  v.  McHenry,  562. 
Kesller  v.  Kern,  498,  509,  511. 
Ketchen  v.  Landecker,  83,  91,  99. 
Ketchum  v.  Ketchum,  77,  466. 
Ketchum  v.  Vidvard,  45. 
Kettle  V.  Harvey,  271, 
Keuhn  v.  Paroui,  474. 
Keybers  v.  McComber,  501. 
Keyser  v.  Mitchell,  267,  411. 
Keyser  v.  Rice,  317,  318,  509 
Key  West  Building  Ass'n  v.  Bank  of 

Key  West,  467. 
Kibbe  v.  Herman,  94. 
Kibbe  v.  Kibbe,  451,  475. 
Kibbe  v.  Wetmore,  53,  475. 
Kidd  V.  Dougherty,  147. 
Kidd  v.  Shepherd,  643. 
Kidder  v.  Hadley,  254. 
Kidder  v.  Packard,  277. 


Kiefer  v.  Webster,  88. 

Kiely  v.  Bertrand.  263,  297. 

Kiesel  v.  Union  Pacific,  etc.,  394. 

Kiflf  v.  Old  Colony,  etc.,  R.  Co.,  383. 

Kiggins  v.  Woodke,  256,  349. 

Kilborue  v.  Fay,  563. 

Kilbourne  v.  Wood  worth,  3,  4,  426. 

Kilcrease  v.  Blythe,  254,  444. 

Kilpatrick,  etc.,  Co.  v.  McPheely,  48. 

Kimball  v.  Evans,  306. 

Kimball  v.  Macomber,  263. 

Kimball  v.  McComber,  360. 

Kimball  v.  Plant,  278. 

Kimball,  etc.,  Man.  Co.  v.  Vromaji, 

582. 
Kimber  v.  Clark,  536. 
Kimbrough  v.  Davis,  653. 
Kincaid  v.  Frog,  236. 
Kincaid  v.  Neal,  466,  540. 
King  V.  Bailey,  568. 
King  V.  Bird,  508. 
King  V.  Bucks,  207,  238,  330. 
King  V.  Cooper,  55. 
King  V.  Harrington,  60,  353,  438,  433, 

433,  443,  445,  447. 
King  V.  Hubbell,  186,  173. 
King  V.  Kehoe,  683. 
King  V.  ]\Ioore,  288. 
King  V.  Shepherd,  406. 
King  V.  Southwick,  99. 
King  V.  Thompson,  61,  84. 
King  V.  Vance,  4,  435,  654 
Kingman  v.  Perkins,  365. 
Kingsbury  v.  Phelps'  Adm'r,  369. 
Kingsland  v.  Cowman,  97. 
Kingsland  v.  Worsham,  34. 
Kingsley  v.  Mo.  Fire  Co.,  375. 
Kinnear  v.  Brunell,  556. 
Kinner  v.  Flanders,  561. 
Kinney  v,  Emerj%  163. 
Kinney  v.  Herald,  110. 
Kinsey  v.  Wallace,  13,  675. 
Kipp  V.  Chamberlain,  181. 
Kipp  V.  Fullerton,  586. 
Kirby  v.  Scoonmaker,  55. 
Kirby-Carpenter  Co.    v.   Twombley, 

648. 
Kirk  V.  Cassady,  500. 


TAULE   OF   CASES. 


Ixi 


Tlie  references  are  to  pages. 


Kirk  V.  Morris.  514,  G07. 

Kirkman  v.  Hamilton,  268. 

Kirk  man  v.  Patton,  474 

Kirksey  v.  Bates,  228, 

Kirksey  v,  Dubose,  169. 

Kirksey  v,  Fike,  121. 

Kirksey  v.  Jones,  688,  692. 

Kiser  v,  Dannenberg,  194. 

Kissam  v.  Marshall,  481. 

Kistner  v.  Sindlinger,  305. 

Kitchen  v.  Eeinsky,  240. 

Kittridge  v.  Emerson.  468. 

Kittridge  v.  Gififord,  166,  544,  547. 

Kittridge  v.  Sumner,  195. 

Kittridge  v,  Warren,  468. 

Klauber  v.  AVright,  379. 

Klein  v.  Hoffheimer,  306. 

Kleins  v.  Nie,  42,  130. 

Klemm  v.  Dewes,  457. 

Klenk    v.    Schwalm,    89,    104,    106, 

107. 
Klepper  v.  Powell,  40. 
Kline  v,  O'Donnell,  51, 
Klinefelter  v.  Blame,  199. 
Kling  V.  Childs,  521. 
Klink  V.  Kelly,  12. 
Knap  Y.  Sprague,  403. 
Knapp  V.  Barnard,  684. 
Knapp  V.  Jay,  614. 
Knapp  V.  Standley,  194. 
Kneer  v.  Hoffman,  276. 
Kneetle  v.  Newcomb,  503. 
Knight  V.  Bowley,  281. 
Knight  V.  Clyde,  260. 
Knight  V.  Griddle,  199. 
Knight  V.  Dorr,  114,  485. 
Knight  T.  Gorham,  304. 
Knight  V,  Nelson,  173,  178,  417. 
Knights  V,  Paul,  368,  377. 
Knisely  v,  Evans,  279. 
Knowles  v.  Coke  Co.,  237. 
Knowles  v,  Stees,  45. 
Knox  V.  Atterburg,  478. 
Knox  v.-  Mason,  36. 
Knox  V.  Protection  Ins.  Co,,  272,  318, 

319. 
Knox  V.  Waldoborough,  28, 
Kohler  v.  Agassiz,  71. 


Kohler  v.  Muller,  3")5, 

Kohn  V,  Hinshavv,  514,  515. 

Kohn  V.  Ryan,  303, 

Kokorao,  etc.,  Co.  v.  Inman,  98. 

Kolb  V.  Cheney,  61,  84. 

Kollette  V.  Seibel,  540, 

Kolsky  V.  Loveman,  500. 

Kothman  v.  Markson,  207,  397. 

Koutina  v,  Culpepper,  89. 

Kraft  V,  Paths,  263. 

Kramer  v.  Light  Co.,  675. 

Kramer  v,  Willendorff,  147. 

Kreker  v.  Mason.  200. 

Kressin  v.  Marr.  504. 

Kiippendorf  v,  Hyde,  663,  666. 

Kritzer  v.  Smith,  608. 

Krone  v.  Cooper,  27. 

Kruger  v,  Spieth,  180. 

Kruse  v,  Wilson.  383. 

Kuehn  v.  Paroni,  57. 

Kugler  V.  Shreve,  25,  34 

Kuhn  V.  Bank,  506, 

Kuhn  T,  Embry,  106. 

Kuhn  V,  Graves.  11. 

Kuhn  V.  Kuhn,  83, 

Kuhn  V,  McMillan,  530. 

Kutter  V.  Smith,  190,  ' 

Kyle  V,  Connelly,  138. 

Kyle  V.  Montgomery,  509. 

Kyles  V.  Ford,  583. 

L. 

Labe  v.  Brauss,  33. 

Lacey  v.  Kenley,  234. 

Lackett  v,  Rumbaugh,  263,  265,  286, 

436,  452,  637. 
Lackey  v.  Seibert,  12,  586. 
Lackland  v,  Garesche,  267,  641. 
Laclede  Bank  v,  Keeler,  536. 
La  Crosse  Bank  v.  Wilson,  367. 
Ladd  V.  Adams,  504 
Ladd  V.  Gale.  285. 
Ladd  V.  Hill,  223. 
Ladd  V.  Jacobs,  299,  644 
Ladd  V,  North,  395. 
Ladew  v,  Hudson  Slioe  Co.,  52. 
Ladiga  Mill  Co,  v.  Smith,  3. 


Ixii 


TABLE   OF   CASES. 


TJie  references  are  to  pages. 


Lady  Ensley  Furnace  Co.  v.  Eogau, 

263. 
Lafayette  Ins.  Co.  v.  French,  255,  331, 

332,  333,  421,  448. 
Laflin  v.  Baltimore,  etc.,  356. 
Lafollye  v.  Carriers,  570. 
Lagomarcino  v.  Quattrochi,  556. 
Lahitte  v.  Fiere,  575. 
Laidlaw  v.  Morrow,  376,  651. 
Lake  Shore,  etc.,  R.  R.  Co.  v.  Hunt, 

235. 
Lallande  v.  Crandall,  518. 
Lamar  v.  Gunter,  10. 
Lamb  v.  Beldeu,  11. 
Lamb  v.  Day,  399. 
Lamb  v.  Stone,  307. 
Lambard  v.  Pike,  206,  233. 
Lambden  v.  Bowie,  472,  483. 
Lambert  v.  Haskell,  683. 
Lambert  v.  Saloy,  581. 
Lamberton   v.  Merchants'  N.  Bank, 

578. 
Lambeth  v.  Clarke,  319. 
Lambeth  v.  Turnbull,  188. 
Lammon  v.  Feusier,  655,  660,  663. 
Lamont  v.  Cheshire,  579. 
Lamphere  v.  Lowe,  190. 
Lampkin  v.  Douglass,  103,  135,  433. 
Lampkin  v.  PhilHps,  300. 
Lamson  v.  Adlard,  36, 
Landa  v.  Obert,  64,  699. 
Landauer  v.  Victor,  55,  194,  540. 
Landers  v.  Staten   Island  R  R.  Co., 

457. 
Landfair  v.  Lowman,  87. 
Landon  v.  Burke,  421. 
Landry  v.  Chayret,  372,  388. 
Landsberg  v.  Bullock,  276. 
Lane  v.  Fellows,  93. 
Lane  v.  Felt,  384. 
Lane  v.  Jackson,  13,  427. 
Lane  v.  Leech,  456,  459. 
Lane  v.  Nowell,  257. 
Lane  v.  Shears,  250,  428. 
Lane  v.  Vick,  438. 
Lane's  Appeal,  339. 
Lang  -v.  Dougherty,  684. 
Langdon  v.  Brumby,  406. 


Langdon  v.  Lockett,  289,  290. 
Langert  v.  Brown,  565. 
Langford  v.  Langford,  407. 
Langford  v.  Ottumwa  Water  Power 

Co.,  336,  357,  623. 
Langley  v.  Barry,  306. 
Langtry  v.  Circuit  Judge,  333. 
Lankin  v.  Douglass,  86. 
Lannan  v.  Smith,  303. 
Lannan  v.  Walter,  372. 
Lapp  V.  Van  Norman,  191,  193. 
Larabee  v.  Knight,  381. 
Laredo  v.  Nalle,  317. 
Larey  v.  Baker,  375. 
Large  v.  Moore,  303. 
Laribee  v.  Parks,  544. 
Larkin  v.  Wilson,  884. 
Larrabee  v.  Walker,  371. 
Las  Animas    Co.   Commissioners  v. 

Bond,  314. 
Laschear  v.  White,  384. 
Lashus  V.  Matthev.'s,  169. 
Latham  v.  Egerton,  442. 
Latham  v.  Selkirk,  460. 
Lathers  v.  Wyman,  683. 
Lathrop  v.  Blake,   190,  241,  285,  395. 
Lathrop  v.  Clapp,  639. 
Lathrop  v.  Snyder,  90,  103,  159. 
Lau  V.  Dry  Goods  Co.,  652. 
Laudeman  v.  Wilson,  95. 
Laughlin  v.  Maybin,  276. 
Laughran  v.  Kelly,  363,  365,  371. 
Laughton  v.  Atkins,  7. 
Lavretta  v.  Holcombe,  173. 
Lawless  v.  Hackett,  585. 
Lawlin  v.  Clay,  251,  252. 
Lawrence  v.  Burnham,  186. 
Lawrence  v.  Connell,  591,  594. 
Lawrence  v.  Englesbj',  7. 
Lawrence  v.  Featherston,  134,  474. 
Lawrence  v.  Hagerman,  9,  676,  681, 

691. 
Lawrence  v.  Jones,  483,  485. 
Lawrence  v.  Lane,  652. 
Lawrence  v.  Rice,  395. 
Lawrence  v.  Smith,  282,  335,  344 
Lawrence  v.  State,  253. 
Lawrence  v.  Steadman,  124, 


TABLE    OF    CASES. 


Ixiii 


The  references  are  to  jjages. 


Lawrence  v.  Stratton,  562, 

Lawrence  v.  Yeatman,  132,  137,  433, 
443,  464. 

Lawrence  Bank  v.  Iron  Co.,  304. 

Lawson  v.  Adlard,  27. 

Lawson  v.  Van  Auken,  43. 

Lawton  v.  Branch,  631. 

Lawyer  v.  Langlians,  92,  118. 

Layman  y  Beam,  240. 

lica  y.  Maxwell,  238. 

Lea  y.  Vail,  148. 

Leach  y.  Cook,  185. 

Leach  v.  Swann,  443,  445. 

Leach  y.  Thomas,  478. 

Leadville  Bank  y.  Leppel,  321. 

Leah  v.  Greenwood,  680. 

Leake  v.  Moorman,  15. 

Learned  v.  Vanderburgh,  213. 

Leathers  y.  Cannon,  30. 

Lebeaume  y.  Sweeney,  682. 

Lecesne  y.  Cottin,  526, 

Lecroy  v.  Wiggins,  115. 

Le  Doux  y.  Johusop,  189. 

Ledyard  v.  Butler.  617. 

Lee  V.  Association,  91. 

Lee  y.  Boutwell,  64. 

Lee  y.  CarroUton  Sayings  &  Loan  As- 
sociation, 630. 

Lee  V.  Gansel,  218. 

Lee  V.  Homer,  700. 

Lee  V.  James,  236. 

Lee  y.  Miller,  504. 

Lee  y.  O'Shannessy,  456. 

Lee  V.  Parmer,  377. 

Lee  y.  Peters,  92,  108,  125. 

Lee  y.  Robinson,  293,  305. 

Lee  y.  Ryall,  623. 

Lee  V.  Shaunnossy,  489. 

Lee  y.  Stanley,  25. 

Lee  y.  Tabor,  257. 

Lee  V.  Vail,  477. 

Lee  V.  Wilkins,  183. 

Leeds  y.  Muelk  r,  462. 

Leefe  y.  Walker,  271. 

Leeser  y.  Boekhoff,  695. 

Leffingwell  v.  Chave,  139, 147. 

Leffingwell  y.  Warren,  438. 

Legg  V.  Willard,  197. 


Legro  y.  Staples,  300. 
Lehman  y.  Berdiu,  437,  490,  491. 
Lehman  v.  Broussard,  130,  135,  234. 
Lehman  y.  Hudman,  339,  379. 
Lehman  v.  Hudson,  382. 
Lehman  v.  Lowman,  61. 
Lciiman  y.  McFarland,  52. 
Lehman  v.  Van  Winkle,  500. 
Leiber  y.  St.  Louis  Ass'n,  644 
Leiber  y.  Union  Pac.  R.  R  Co.,  511. 
Leigh  y.  Smith,  623. 
Leighton  v.  Heagerty,  383. 
Leighton  v.  Lord,  548. 
Leingardt  v.  Deitz,  375. 
Leitensdorfer  v.  Webb,  53,  54. 
Le  Neve  v.  Le  Neve,  577. 
Lenhoff  v.  Fisher,  638. 
Lenle  v.  Routon,  518. 
Lenox  v.  Howland,  70, 
Leon  y.  Galceran,  669. 
Leon  v.  Scram,  539.  570. 
Leonard  v.  Bank,  645. 
Leonard  v.  Bryant,  433. 
Leonard  v.  Davis,  197. 
Leonard  y.  Speidel,  530. 
Leonard  v.  Stout,  92, 124. 
Lera  y.  Frieberg,  683. 
Leroux  v.  Bald  us,  288,  290. 
Le  Roy  v.  East  Saginaw   City  Rail- 
way, 93,  123,  181. 
Lesher  y.  Getman,  201,  202,  220,  331. 
Lesley  y.  Godfrey,  374. 
Leslie  y.  Merrill,  281. 
Lessee  of  Adams  v.  Jeffries,  428. 
Lessees  v.  Corwin,  437. 
Lessley  y.  Phipps,  502. 
Lester  v.  Abbott,  55. 
Lester  v.  Cummiugs,  61,  99. 
Letts  y.  McMaster,  256. 
Levi  y.  Frunklin,  323. 
Levicks  v.  Walker,  503. 
Levisohn  y.  Waganer,  281. 
Levitzky  v.  Canning,  698. 
Levy  v.  Cowan,  183. 
Levy  y.  Elliott.  109,  433. 
Levy  V.  Fitzpatrick,  440. 
Levy  V.  Lehman,  190. 
Levy  y.  Levy,  90. 


Ixiv 


TABLE   OF   CASES. 


77ie  references  are  to  pages. 


Levy  V.  McDowell,  396. 

Levy  V.  Miller,  305,  354. 

Levy  V.  Mill  man,  93. 

Lewis  V.  Birdsey,  352. 

Lewis  V,  Board,  297. 

Lewis  V,  Board  of  Com'rs,  300. 

Lewis  V.  Buck,  285. 

Lewis  V.  Dubose,  158.  171,  312. 

Lewis  V.  Dunlop,  379,  381. 

Lewis  V.  Faul,  356. 

Lewis  V.  Harwood,  371,  536. 

Lewis  V.  Jehns,  178. 

Lewis  V.  Johnson,  576. 

Lewis  V.  Kennedy,  124. 

Lewis  V.  Locke,  582. 

Lewis  V.  Lyman,  189. 

Lewis  V.  Mansfield,  659. 

Lewis  V.  Quinker.  341. 

Lewis  V  Smith,  271. 

Lewis  V.  Stewart,  88,  100. 

Lewis  V.  Taylor,  684,  690. 

Lewis  V.  Woodfolk,  347. 

Lewis  V.  Wright,  484. 

Lewiston  Mill  Co.  v.  Foss,  394. 

Lexington,  etc.,  R.  Co.  v.  Applegate, 

130. 
Lexington  &  Big  Sandy  R.  R.  Co.  \. 

Ford  Place  Glass  Co.,  620. 
Leyser  v.  Field,  691. 
Libbey  v.  Hodgdon,  24,  331. 
Libby  v,  Cushman,  13. 
Liberties  v.  Munford,  377. 
Lick  V.  Madden,  163,  545,  550. 
Lieber  v.  Association,  645. 
Lieberman  v.  Hoffman,  263. 
Liebman  v.  Ashbacker,  10,  610,  612. 
Life  Ass'n  v.  Fassett,  468. 
Light  V.  Isear,  5. 
Lightle  V.  Berning,  515,  516. 
Lightner  v.  Steinagel,  285,  312,  316. 
Likens  v.  McCormick,  246,  253. 
Lillard  v.  Carter,  114,  115. 
Linahan  v.  Barr,  189. 
Lincoln  v.  Beebe,  530. 
Lincoln  v.  Strickland,  233,  244. 
Lincoln  v.  Tower,  426. 
Lincoln  v.  White,  3. 
Lindau  v.  Arnold,  377. 


Lindeman  v.  Engman,  269. 

Lindenthal  v.  Burke,  365. 

Linder  v.  Benson,  631. 

Liuderman  v.  Ingham,  563. 

Lindner  v.  Aaron,  139. 

Lindsay  v.  Larned,  692. 

Lindsay  v.  Morris,  382. 

Lindsey  v.  Dixon,  39. 

Lindsey  v.  Parker,  177. 

Lindsley  v.  Malone,  483. 

Lingardt  v.  Deitz,  623. 

Lippencott  v.  Wilson,  580. 

Lippitt  V.  Am.  Paper  Co.,  579. 

Lipscomb  v.  McClellan,  622. 

Lisher  v.  Getmaii,  178. 

Lithgow  V.  Byrne,  80. 

Little  V.  Hale,  278. 

Little  V.  Nelson,  364,  365. 

Little  V.  Owen,  632. 

Little  V.  Ragan,  167. 

Little  V.  Sinnett,  444. 

Little  Wolf,  etc.,  Co.  v.  Jackson,  635. 

Littlefield  v.  Davis,  414,  614. 

Littlefield  v.  Smith,  298. 

Littlejohn  v.  Jacobs,  42,  57. 

Littlejohn  v.  Lewis,  375. 

Littlejohn  v.  Wilcox.  695. 

Littleton  v.  Frank,  696. 

Littleton  v.  Wyman,  210,  394. 

Littleton  Bank  v.  Portland,  etc.,  R.  R. 

Co.,  328. 
Livengood  v.  Shaw,  108. 
Livermore  v.  Rhodes,  484. 
Livermore  v.  Swasey,  7. 
Liverpool  Ins.  Co.  v.  Massachusetts, 

204. 
Livingston  v.  Smith,  169,  170,  448. 
Llano,  etc.,  Co.  v.  Castanola,  638. 
Lloyd  V.  Fulton,  43. 
Lobdell  V.  Bushnell,  185. 
Lobenstein  v.  Hymson,  685,  686. 
Lock  V.  Johnson,  506. 
Locke  V.  Butler,  214. 
Locke  V.  Lewis,  55,  305. 
Locke  V.  Tippets,  643. 
Locket  V.  Child,  276. 
Lockett  V.  Newfoille,  147. 
Lockett  V.  Rumbough,  77,  365. 


TABLE    or    CASES. 


1X7 


The  references  are  to  pages. 


Lockhart  v.  Johnson,  624. 

Lockhart  v.  Woods,  68G,  G88,  692. 

Loder  v.  Littlefield,  32. 

Lodge  V.  State  B-mk,  464. 

Lodor  V.  Baker,  289. 

Loeb  V.  Smith,  51,  82. 

Loftin  V.  Schakleford,  373. 

Lokett  V.  Neufville,  477. 

Loraerson  v.  Huffman,  271,  277,  384, 

648. 
Long  V.  Girdwood,  194. 
Long  V.  Johnson,  632. 
Long  V.  Murphy,  159,  467,  558. 
Long  V.  Ryan,  25. 

Long  Branch,  etc.  v.  Davenport,  194. 
Longcope  v.  Bruce,  183. 
Longley  v.  Daly,  503. 
Lougstaflf  V.  Miles.  116. 
Look  V.  Brackett,  276,  558. 
Looker  v.  Halcomb,  693- 
Loomis  V.  Stuart,  688. 
/Lord  V.  Allen,  622. 
Lord  V.  Baldwin,  116. 
Lord  V.  Collins,  290. 
Lord  v.  Devendorf,  55. 
Lord  V.  Gaddis,  466. 
Lord  V.  Meacham,  297,  C99. 
Lorillard  v.  Barrett,  89. 
Loring  v.  Wittich,  456,  460. 
Lorman  v.  Phosnix  Ins.  Co.,  361,  368, 

371,  384. 
Lorrain  v.  Higgins,  119. 
Losee  v.  Ream,  325. 
Lott  V.  Hubbard,  169. 
Loubat  V.  Kipp,  543. 
Louderman  v.  Wilson,  263. 
Louisville  R.  Co.  v.  Lake,  139,  130, 

135,  645,  651. 
Louisville,  etc.,  R.  Co.  v.  Dooley,  324, 

334. 
Louisville,  etc.,  R.  R.  Co.  v.  llTichoI- 

son,  463. 
Lounsbury  v.  Purdy,  617. 
Love  v.  Fairfield.  131.  137. 
Love  V.  Harper,  555. 
Love  V.  Rockwell,  144. 
Love  V.  Voorhies,  5, 451, 490,  521,  523, 

535. 

E 


Love  V.  Young,  90. 

Lovejoy  v.  Albree,  282,  332,  341,  510. 

Lovejo}'  v.  Hartford,  etc..  Ins.  Co., 

323. 
Lovejoy   v.    Hutchins,  213,  241,  39^ 

395,  437,  494. 
Lovejoy  v.  Insurance  Co.,  263. 
Lovejoy  v.  Lee,  388. 
Lovejoy  v.  Lunt,  253. 
Lovejoy  v.  Mur])hy,  178. 
Lovejoj"  V.  Murray,  224. 
Lovelady  v.  Harkins,  160,  165,  243. 
Loveland  v.  Alvord,  62. 
Loveland  v.  Mining  Co.,  614. 
Lovell  V.  Sabin,  395. 
Loveridge  v.  Plaistow,  219. 
Lovett  V.  Matthews,  7. 
Lovier  v.  Gilpin,  169,  483. 
Low  V.  Felton,  470. 
Lowe  V.  Derrick,  148,  477. 
Lowe  V.  Morris,  165. 
Lowe  V.  Stringhani,  511. 
Lowenstein  v.  Aaron,  340. 
Lowenstein  v.  Bew,  45. 
Lowenstein  v.  McCadden,  515. 
Lowenstein  v.  Monroe,  12,  673,   673, 

684,  695. 
Lowenstein  v.  Salinger,  473. 
Lowenstine  v.  Gillispie,  253. 
Lowry  v.  Bank,  645. 
Lowry  v.  Clements,  623. 
Lowry  v.  Howard,  611. 
Lowry  v.  Kinsey,  559. 
Lowry  v.  McGee,  525,  611,  624. 
Lowry  v.  Stowe,  137,  148,  474. 
Lowry  v.  Walker,  395. 
Lucas  V.  Campbell,  291,  636. 
Lucas  V.  Goodwin,  228,  230. 
Luce  V.  Hoisington,  222,  233,  224 
Luckett  V.  Rumbaugh,  2. 
Lucky  V.  Miller,  131,  137. 
Ludden  v.  Leavitt,  395,  399. 
Ludlow  V.  Ramsey,  34,  109,  125. 
Ludwig  V.  Blum,  249. 
Luebbering  v.  Oberkoetter,  224* 
Lundie  v.  Bradford.  257,  271. 
Lupton  v.  Cutter.  199. 
Lupton  V.  Moore,  353. 


Ixvi 


TABLE   OF   CASES. 


The  references  are  to  pages. 


Lush  V,  Galloway,  337,  363. 

Lusk  V.  Ramsay,  670. 

Lutes  V.  Perkins,  464. 

Luther  v.  Bordeu,  438. 

Luthy  V.  Woods,  314. 

Lutkins  v.  Aird,  48. 

Luton  V.  Hoehn,  275. 

Lutterloh  v.  Mcllhenny,  604. 

Luttin  V.  Benin,  219. 

Luttrell  V.  Martin,  153,  487. 

Lutz  V.  Kelley,  611. 

Lyeth  v.  Griffis,  210,  211,  213,  294, 

394. 
Lyford  v,  Demerritt,  651. 
Lyford  v.  Tyrrel,  219. 
Lyle  V.  Barker,  188,  505. 
Lyle  V.  Foreman,  28,  34. 
Lyman  v.  Burlington,  166. 
Lyman  v.  Lauderbaugh,  696. 
Lyman  v.  Lyman,  405. 
Lyman  v.  Orr,  258. 
Lyman  v.  Parker,  360. 
Lyman  v.  Wood,  260. 
Lynch  v.  Andrews,  78. 
Lynch  v.  Crarj%  154,  543. 
Lynch  v.  Hartford  Ins.  Co.,  643. 
Lynch  v.  Hoffman,  109. 
Lynch  v.  Johnson,  639, 
Lynch  v.  Mechanics'  Bank,  582. 
Lynd  v.  Pickett,  170,  222,  223. 
Lynde  v.  Montgomei-y,  37. 
Lynde  v.  Watson,  370. 
Lyou  V.  Balentine,  269,  286. 
Lyon  V.  Blakesley,  88,  89. 
Lyon  V.  Fairfield  County,  312. 
Lyon  V.  Kneeland,  272,  363. 
Lyon  V.  Eood,  213. 
Lyon  v.*  Sanford,  205,  505. 
Lyon  V.  Yates,  170. 
Lytle  V.  Lytle,  239. 

M. 

Mabry  v.  Harrison,  504 
Macauley  v.  Smith,  565. 
Macauly,  Re,  458. 
Mace  V.  Heald,  263. 
Mace  V.  Heath,  503,  506. 


Macdonald,  Ex  parte,  97. 

MacFarland  v.  Lehman,  686. 

Mack  V.  Jones,  42,  52. 

Mack  V.  McDaniel,  46,  47. 

Mack  V.  Win  slow,  389. 

Mackey  v.  Hodgson,  632. 

Mackey  v.  Hyatt,  57,  81,  101. 

Mackie  v.  Cairns,  48. 

Mackubin  v.  Smith,  60. 

Macomber  v.  Doane,  365. 

Macomber  v.  Parker,  197. 

Macomber  v.  Wright,  277. 

Macumber  v.  Beam,  485. 

Maduel  v.  Mousseaux,  270,  273. 

Magee  v,  Beirne,  7. 

Magee  v.  Callan,  524. 

Magee  v.  Carpenter,  567. 

Magee  v.  Fogerty,  116,  470,  472. 

Magne  v.  Seymour,  657. 

Magoffin  V.  Mandeville,  253. 

Magoou  V.  Gillett,  113,  481. 

Magrath  v.  Hardy,  154. 

Mahalovitch  v.  Barlass,  173. 

Mahan  v.  Scruggs,  504. 

Maher  v.  Brown,  305. 

Mahew  v,  Scott,  268. 

Mahon  v.  Kennedy,  212. 

Main  v.  Bell,  170,  483,  604. 

Main  v.  Tappener,  207. 

Maine  Ins.   Co.  v.  Weeks,   199,  201, 

27L 
Mairet  v.  Marriner,  108. 
Maish  V.  Blair,  409. 
Malcom  v.  Spoor,  398. 
Maley  v.  Barrett,  170. 
Malley  v.  Altman,  339. 
Malloy  V.  Burtis,  623. 
Malone  v.  Handley,  37. 
Malone  v.  Lindley,  25. 
Malone  v.  Samuel,  240. 
Malsom  v.  Spoor,  218. 
Malvin  v.  Christoph,  499. 
Mamlock  v.  White,  169. 
Manchester  v.  Burns,  506. 
Manchester  v.  McKee,  605. 
Manchester  v.  Smith,  301. 
Mandel  v.  McClure,  555. 
Mandell  v.  Peet,  32,  38,  93,  125,  141. 


TABLE   OF   CASES. 


Ixvii 


The  references  are  to  pages. 


Mangold  v.  Dooley,  319. 

INIanice  v.  Gould,  456. 

Manley  v.  Zeigler,  16. 

Manly  v.  Bitzer,  509. 

Manly  v.  Headley,  93,  121. 

Mann  v.  Brewer,  530. 

Mann  v.  Buford,  270,  291. 

Mann  v.  Carter,  98. 

Mann  v.  Ex'rs  of  Mann,  199. 

Mann  v.  Flower,  563. 

Mann  v.  Welton,  502. 

Manning  v.  Head,  246. 

Manning  v.  Mathews,  803. 

Manny  v.  Adams,  496. 

Manovvsky  v.  Conroy,  365. 

Mansard  v.  Daley,  300,  305. 

Mansfield  v.  Express  Co.,  355. 

Mansfield  v.  First  Nat.  Bank,  191. 

Mansfield  v.  Eutland  Manuf.  Co.,  299. 

Mansfield  v.  Stevens,  262,  322. 

Mansur  v.  Cofiin,  479. 

Man  ton  v.  Poole,  90,  96. 

Mantz  V.  Hendley,  80,  98,  114,  122, 

138,  477. 
Manuf.  Bank  v.  Osgood,  378. 
Maples  V.  Tunis.  122. 
Marble  Falls  Ferry  v.  Spitler,  327. 
Marchidon  v.  O'Hara,  505. 
Mariet  v.  Marriner,  125. 
Marine  N.  Bank  v.  Whitman  Paper 

Mills,  290. 
Marion  v.  Faxon,  186. 
Market  N.  Bank  v.  Pac.  N.  Bank,  245. 
Markham  v.  Gehan,  276. 
Marklej'  v.  Keeuey,  575. 
Marks  v.  Abraham,  16,  604. 
Marks  v.  Anderson,  258,  262,  556. 
Marks  v.  Reinberg,  368. 
Marks  v.  Stoner,  58. 
Marl  in  v.  Kirksey,  298. 
Marnine  v.  Murphy,  134,  477. 
Marqueze  v.  Le  Blanc,  640. 
Marqueze  v.  Southeimer,  58, 226, 655, 

684,  696. 
Mars  V.  Virginia  Co.,  643. 
Marsh  v.  Backus,  170,  321. 
Marsh  v.  Davis,  372,  653. 
Marsh  v.  Fulton,  592,  595. 


Marsh  v.  Phillips,  652. 
Marsh  v.  Pier,  521.  524. 
Marsh  v.  Steele,  129,  438. 
Marsh  v.  Williams,  12,  69. 
Marshall  v.  Alley,  62,  88,  475. 
Marshall  v.  Betner,  689. 
Marshall  v.  Hosmer,  176,  656w 
Marshall  v.  IMarshall,  396. 
Marshall  v.  Ravisies,  141,  614 
Marshall  v.  White,  75. 
Marston  v.  Baldwin,  242. 
Marston  v.  Carr,  199. 
Marston  v.  Dewberry,  619. 
Marston  v.  Marston,  181. 
Martin  v.  Bayley,  181,  622. 
Martin  v.  Branch  Bank,  24. 
Martin  v.  Central  R.  Co.,  252,  348,  354, 

510. 
Martin  v.  Dortch,  138. 
Martin  v.  Dry  den,   12,  428,  482,  48^, 

442,  616. 
Martin  v.  Foreman,  837. 
Martin  v.  Gilbert,  667. 
Martin  v.  Hartnett,  559,  561,  598L 
Martin  v.  Lamb,  362. 
Martin  v.  Maxey,  614. 
Martin  v.  McCormick,  592. 
Martin  v.  McKinney,  442. 
Martin  v.  Nixon,  577. 
Martin  v.  Perrill,  688. 
Martin  v.  Potter,  297. 
Martin  v.  Thierrj',  456,  458. 
Martin  v.  Thompson,    130,    134,   477, 

563. 
Martin  Clothing  Co.  v.  Page,  541. 
Marty,  In  re,  70,  465. 
Martz  V.  Pfeifer,  68,  167. 
Martz  V.  Insurance  Co.,  263,  293. 
Marvel  v.  Babbitt,  264. 
Marvel  v.  Houston,  292,  295. 
Marvin  v.  Hawley,  283,  287, 
Marx  V.  Abraham,  65,  114,  115,  132, 

481. 
Marx  V.  Lienkauff,  681. 
Marx  V.  Strauss,  52,  686.  687. 
Maryland  v.  Bait  &  O.  R.  R,  816. 
Maskell  v.  Barker,  691. 
Mason  v.  Aldrich,  404,  556. 


Ixviii 


TABLE   OF   CASES. 


Tlie  references  are  to  pages. 


Mason  v.  Ambler,  367. 

Mason  v.  Anderson,  228,  229,  239, 244. 

Mason  v.  Beebee,  365,  511. 

Mason  V.  Crabtree,  649. 

Mason  v.  Fuller,  516. 

Mason  v.  McCampbell,  881. 

Mason  v.  Messenger,  443. 

Mason  v.  Rice,  115,  136,  277. 

Mason  v.  Stewart,  139. 

Mason  v.  Tuttle,  586. 

Mason  v.  "Watts,  657. 

Massachusetts  Nat.  Bank  v.  Bullock, 

293,  299.  300,  339. 
Massey  v.  Blako,  64. 
Massey  v.  Scott,  4,  426,  432,  434,  607. 
Massey  v.  Walker,  487. 
Masters  v.  Turner,  630. 
Masterson  v.  Phinizy,  677. 
Masterton  v.  Missouri  Pac.    R.    Co., 

325,  354. 
Matheney  v.  Earl,  628,  651. 
Matheny  v.  Galloway,  377. 
Matheny  v.  Hughes,  202. 
Matheson  v.  Rutledge.  298. 
Mathews  v.  Sands,  341. 
Mathias  v.  Yetts,  593. 
Matthews  v.  Ausley,  162. 
Matthews  v.  Dare,  86. 
Matthews  v.  Densmore,   3,    123,    172, 

390. 
Matthews  v.  Houghton,  645. 
Matthews  v.  Loth,  43. 
Matthews  v.  Park,  260. 
Matthews  v.  Smith,  335,  337. 
Mattingly  v.  Boyd,  286,  410,  586. 
Mattingly  v.  Grimes,  259,  268. 
Maude  v.  Rhodes,  422,  434,  451. 
Maulsby  v.  Farr,  228,  229,  458. 
Maupin  v.  Emmons,  577. 
Maupin  v.  Va.  Lead  Mining  Co.,  607. 
Maury  v.  Roberts,  555, 
Maus  V.  Borne,  575. 
Mavity  V.  Eastbridge,  648. 
Maxey  v.  Speith,  014. 
Maxwell  v.  McBrayer,  75. 
Maxwell  v.  McGee,  187. 
Maxwell  V.  Stewart,  426. 
May  V.  Baker,  15. 


May  V.  Bank,  1-95. 

May  V.  Buckhannon,  etc.,  155. 

May  V.  Courtnay,  469. 

May  V.  Ferrill,  166. 

May  V.  Gamble,  143. 

May  V.  Newman,  42. 

May  V.  Sibley,  67. 

Mayberg  v.  Steagall,  573. 

Mayberry  v.  Morris,  279. 

Mayberry  v.  Steagall,  525,  559. 

Mayer  v.  Brooks,  232. 

Mayer  v.  Chattahoochie  Nat.  Bank, 

300. 
Mayer  v.  Duke,  170,  683,  689. 
Mayer  v.  Fagan,  684. 
Mayer  v.  Walker,  686. 
Mayer  v.  Zingre,  159,  488. 
Mayes  v.  Jones,  470. 
Mayes  v.  Phillips,  200. 
May  field  v.  Bennett,  4,  457. 
Mayfield  v.  Cotton,  687. 
Mayhew  v.  Davis,  372. 
Mayliew  v.  Dudley,  119, 
Maynard  v.  Cornwell,  381. 
Mayor  v.  Dunnavant,  698. 
Mayor  v.  Liverpool  Ins.  Co.,  331. 
Mayor,  etc.  v.  Horton,  317. 
Mayor,  etc..  of  N.  Y.  v.  Genet,  96, 
Mayor  of  New  York  v,  Sibberns,  661. 
McAllaster  v.  Bailey,  192. 
McAllister  v.  Brooks,  647,  653. 
McAllister  v.  Eiciiengreen,  71. 
McAllister  v.  Insinance  Co.,  323,333. 
McAlpine  v.  Sweetzer,  648. 
McAlpine  v.  Woodruff,  898.    . 
McBride  v.  Bank,  135. 
McBride  v.  Farmers'  Bank,  617. 
McBride  v.  Floyd,  466,  540. 
IMcBride  v.  Earn,  10,  11,  12,  620. 
McBurnie  v.  Overstreet,  224. 
McCaffrey  v.  Moore,  643. 
McCambridge  v,  Barry,  346. 
McCandish  v.  Hopkins,  138, 
McCann  v.  Randall,  354. 
McCanu's  Estate,  266. 
McCaru  v.  Rivers,  548. 
McCart  v.  Maddox,  681. 
McCarthy  v.  Goold,  199. 


TABLE    OF   CASES. 


Lxix 


Tlie  references  are  to  pages. 


McCarthy  v.  Grace,  556. 
McCarthy  v.  IMarsh,  7. 
McCartney  v.  Branch  Bank,  111. 
McCarty  v.  McPherson,  304,  638. 
McCarty  v.  Steam  Propeller,  etc.,  272. 
McCaulley  v.  Shune,  54. 
McClauahan  v.  Brack,  00,  109. 
McClellan  v,  Lipscomb,  G2,  77,  402. 
McClellan  v.  Solomon,  208. 
McClellan  v.  Young,  316. 
McClendon  v.  Wells,  127. 
McClerkin  v.  Sutton,  31. 
McClintock  v.  Laigr,  147. 
McCloon  V.  Beattie,  376. 
McClosky  V.  Circuit  Court,  428. 
McClosky  V.  Wingfield,  519. 
McClure  v.  Braniff,  499. 
McClure  v.  Campbell,  195. 
McClure  v.  Smith,  228., 
McCobb  V.  Tyler,  554. 
McCoid  V.  Beatty,  300. 
McCollem  v.  White,  27,  83,  86,  93, 

609,  611. 
McComb  V.  Allen,  4,  5,  521. 
McComb  V.  Reed,  395. 
McConnell  v.  Denham,  269. 
McConnell  v.  Kaufman,  217. 
McConnell  v.  Langdon,  667. 
McConnell  v.  Eakness,  651. 
McCook  V.  Willis,  137,  477. 
McCoombe  v.  Dunch,  31. 
McCord  V.  Krause,  468. 
McCormac  v.  Hancock,  270. 
McCormick  v.  Bay  City,  516. 
McCormick,  etc.  v.  Colliver,  556. 
McCormick,    etc.,  Co.   v.   Jacobson, 

614. 
McCormick,  etc.,  Co.  v.  James,  351, 

352. 
McCoun  V.  New  York,  etc.,  R.  R.  Co., 

72,  153. 
McCown  V.  Smith,  268. 
McCoy  V.  Watson,  .3. 
McCoy  V.  Williams,  268. 
McCracken  v.  Covington  Bank,  676. 
McCraw  v.  Welch,  107. 
McCrea  v.  Circuit  Judge,  96. 
McCrea  v.  Purmout,  307. 


McCreary  v.  Topper,  92. 
McCulloch  V.  Foster,  93,  123. 
McCullough  V.  Carragan,  508. 
McCullough  V.  Clark,  639. 
McCullough  V.  Grishhobber,  689,  691. 
McCullough  V.  Walton,  144. 
IMcCutcheon  v.  Weston,  522. 
McDaniel  v.  Gardner,  12,  16, 124,  676, 

677,  690,  698. 
McDaniel  v.  Sappington,  134. 
McDanieJs  v.  Hughes,  645. 
McDonald  v.  Badger,  618. 
McDonald  v.  Bank,  619. 
McDonald  v.  Beach,  305. 
McDonald  v.  Bowman,  488. 
McDonald  v.  Carney,  389. 
McDonald  v.  Faulkner,  536,  565. 
McDonald  v.  Felt,  684. 
McDonald  v.  Finney,  357. 
McDonald  v.  Fist,  147,  470,  477,  483. 
McDonald  v.  Forsyth,  75. 
McDonald  v.  Gillet,  270,  328. 
McDonald  v.  Moore,  319,  354. 
McDonald  v.  Simcox,  648,  658. 
McDonald  v.  Vinette,  355,  609. 
McDougal  V.  Hennepin  Co.,  313. 
McDougall  V.  Board,  etc.,  816. 
McEachin  v.  Reed,  10,  640. 
McElfatrick  v.  Macauley,  516. 
McElhaney  v.  Gilleland,  661. 
McElmoyle  v.  Cohen,  448,  450. 
McElrath  t.  Whetstone,  700. 
McFadden  v.  O'Donnell,  643. 
McFadden  v.  Whitney,  170,  690. 
McFarland  v.  Claypool,  483. 
McFariand  v.  Farmer,  189. 
McFerran  v.  Wiierry,  474. 
McGarran  v.  Haupt,  563. 
McGary  v.  Hastings,  698. 
McGee  v.  Childress,  625. 
McGehee  v.  Walke,  271. 
McGinty  v.  Flannagan,  55. 
JMcGlenchy  v.  Winchell,  257. 
McGoon  V.  Scales,  587. 
McGoren  v.  Avery,  595. 
McGovern  v.  Haupt,  567. 
McGovern  v.  Payne,  56. 
McGowau  V.  IMyers,  290. 


Ixx 


TABLE    OF    CASES. 


The  references  are  to  pages. 


McGowen  v.  Sprague,  121. 
McGraw  v.  Memphis,  etc.,  Co.,  328. 
McGuire  v.  Pitts,  300. 
McGurren  v.  Garrity,  209. 
McHugh  V.  Curtis,  504. 
McHuhey  v.  Cawtliorn,  97. 
Mcllvaine  v.  Lancaster,  259,  267. 
Mcintosh  V.  Hurst,  139,  683. 
Mcintosh  V.  Smiley,  155. 
Mclntyre  v.  White,  131,  137. 
McKay  v.  Harrow er,  395. 
McKean  v.  Turner,  271. 
McKee  v.  Anderson'  383. 
McKee  v.  Coffin,  174.  ■; 

McKee  v.  Hicks,  515. 
McKee  v.  United  States,  596. 
McKeithan  v.  Terry,  504. 
McKellar  v.  Couch,  6^9. 
McKelvey  v.  Crockett,  329. 
McKenzie  v.  Bentley,  16,  36. 
McKenzie  v.  Buchan,  476. 
McKenzie  v.  Noble,  289. 
McKenzie  v.  Ramsay,  442. 
McKiernan  v.  Massingill,  96. 
McKinley  v.  Collins,  421. 
McKinley  v.  Fowler,  29. 
McKinney  v.  Baker,  572. 
McKinney  v.  Collins,  3,  426,  433. 
McKinney  v.  Farmers'  Bank,  52. 
McKinney  v.  Purcell,  191. 
McKinney  v.  Rosenband,  45. 
McKinsej^  v.  Anderson,  482. 
McKittrick  v.  Clemens,  367. 
McKleroy  v.  Cantey,  189. 
McKnight  v.  United  States,  595,  598. 
McLane  v.  McTighe,  686. 
McLain  v.  Simiugton,  143. 
jMcLaren  v.  Anderson,  495. 
IMcLaughlin  v.  Davis,  692. 
McLaughlin  v.  Phillips,  617. 
McLaughlin  v.  Swan,  265,  368. 
McLaughlin  v.  Wheeler,  249,  522. 
McLaughlin's  Adm'r  v.  Daniel,  592. 
McLellan  v.  Young,  314. 
McLellan  Dry  Dock  Co.  v.  Farmers' 

Alliance,  682. 
McLeod  V.  Harper,  166. 
McLinden  v.  Wentworth,  49,  193. 


McLoud  V.  Ellis,  446. 
McLoud  V.  Selby,  313. 
McLuckie  v.  Williams,  127,  128. 
McMahon  v.  Boardman,  108. 
McMahon  v.  Merrick,  556. 
McMechan  v.  Griffing,  208,  578,  610, 

616. 
McMeekin  v.  Johnson,  237. 
McMeekin  v.  State,  308. 
McMillan  v.  Dana,  492,  529. 
McMillan  v.  Richards,  278. 
McMillen  v.  Leonard,  496. 
McMinn  t.  Hall,  273. 
McMinn  v.  Whelan,  345. 
McNally  v.  Connolly,  189,  190. 
McNamara  v.  Ellis,  122,  475. 
McNeal  v.  Roach,  383. 
McNeil  V.  Bean,  700. 
McNeil  V.  Moore,  224. 
McNeilage  v.  Halloway,  200. 
McNeill  V.  Glass,  188. 
McNeill  V.  Roache,  384 
McPhail  V.  Gerry,  567. 
McPhail  V.  Hyatt,  649. 
McPherson  y.  Snowden,  16,  289. 
McPhillips  V.  Hubbard,  336. 
McPike  V.  Atwell,  48,  485. 
McQueen    v.    Middleton    Man.    Ca, 

331. 
McQuiddy  v.  Ware,  592. 
McRae  v.  Austin,  522,  525. 
McRae  v.  Brown,  696,  698. 
McRae  v.  McLean,  514. 
McRee  v.  Brown,  64,  381,  643. 
McReynolds  v.  Neal,  122,  481. 
Mc Williams  v.  Chemical  Co.,  383. 
Meacham  v.  Corbitt,  272. 
Meacham  v.  McCorbitt,  553. 
Meacham  v.  Strong,  547. 
Mead  v.  Bunn,  594. 
Meade  v.  Smith,  170,  232. 
Meadowcraft  v.  Agnew,  259,  265,  266. 
Mean   v.  New  York,   Housatonic  & 

Northern  R.  R.  Co.,  265,  563. 
Means  v.  Brickell,  594. 
Means  v.  Osgood,  242. 
Meany  v.  Head,  242. 
Mechanics'  Bank  v.  Wait,  293. 


TABLE   OF   CASES. 


Ixxi 


The  references  are  to  pages. 


Mechanics'  &  Traders'  Bank  v.  Hodge, 

289. 
Megee  v.  Beirne,  430. 
Meek  v.  Briggs,  266. 
Meek  v.  Fox,  39. 
Meeker  v.  Wilson,  12. 
Meier  v,  Hess.  302. 
Meigs  V.  Weller,  292. 
Meinhard  v.  Lilieuthal,  485. 
Meinhard  v.  Neill,  91. 
Meinhard  v.  Youngblood,  557. 
Meints  v.  East  St.  Louis  Rail  Mill  Co., 

386. 
Meir  v.  Hess,  257. 
Meldrum  v.  Snow,  188. 
Meloy  V.  Orton,  612. 
Melton  V.  Kansas  City,  etc.,  645. 
Melton  V.  Lewis.  349,  654, 
Melton  V.  Troiitman,  692. 
Melville  v.  Brown,  186,  223. 
Memphis  v.  Laski,  316. 
Memphis,  etc.,  R.  Co.  v.  Whorley,  477, 

638. 
Menderson  v.  Specker,  220. 
Mendes  v.  Freiters,  65,  67,  92, 467, 481, 

540. 
Menkel  v.  Gumbel,  574. 
Menley  v,  Zeigler,  206. 
Mensing  v.  Engelke,  258,  269. 
Menzie  v.  Kelly,  512. 
Merced  Bank  v.  Morton,  85,  434. 
Merchant  v.  Howland,  623. 
Merchant  v.  Preston,  58. 
Merchants'  Bank  v.  Coleman,  306. 
Merchants'  Bank  v.  Haiman,  342. 
Merchants'  Bank  v.  McKellar,  51,  60. 
Merchants'    Bank    of    Baltimore  v. 

Campbell,  594. 
Merchants'  Ins.  Co.  v.  Brower,  214. 
Merchants',  etc.,  N.  Bank  v.  Glue  Co., 

454. 
Merchants'  N.  Bank  v.  Abernathy, 

568. 
Merchants'  N.  Bank  v.  Jaflfray,  162. 
Merchants'  Savings,  etc.,  Co.  v.  Good- 
rich, 273. 
Meredeth  v.  Holmes,  495. 
Meredeth  v.  Wilkinson,  375. 


Meriam  v.  Rundlett,  647. 

Merrell  v.  Campbell,  314,  316. 

Merrick  v.  Van  Santvoord,  116,  331. 

Merrielles  v.  Bank,  606. 

Merrill  v.  Campbell,  289,  312. 

Merrill  v.  Curtis.  217. 

Merrill  v.  Denton,  565. 

Merrill  v.  Hurlburt,  563. 

Merrill  v.  Law,  119. 

Merrill  v.  Low,  99. 

Merrill  v.  IMontgoraery,  123. 

Merrill  v.  President,  etc.,  of  Kala- 
mazoo, 582. 

Merrill  v.  Wadgewood,  667. 

Merritt  v.  Miller,  244. 

Mersereau  v.  Norton,  184, 

Merwin  v,  Chicago,  312,  316. 

Meshew  v.  Gould,  399. 

Meshke  v.  Van  Doren.  685. 

Mesker  v.  Frothingham,  617. 

Messenger  v.  Klinter,  428. 

Messner  v.  Hutchins,  93,  122,  140. 

Messner  v.  Lewis,  140,  141,  218,  232, 
472,  487. 

Messner  v.  Woodman,  197. 

Metcalf  V.  Clark,  220. 

Metcalf  V.  Steele,  623. 

Metcalf  V,  Young,  688. 

Metrovitch  v.  Jovovich,  518. 

Metts  V,  Insurance  Co.,  10,  16,  434^ 
568,  590. 

Metzner  v.  Graham,  656. 

Meuley  v.  Zeigler,  229,  232,  23a 

Meuse  v.  Osbern,  472. 

Meyberg  v.  Jacobs,  541. 

Meyer  v.  Black,  45.  570. 

Meyer  v.  Deffar^e,  890. 

Meyer  v.  Evans,  62,  87,  473. 

Meyer  v.  Gage,  6, 

Meyer  v.  Paxton,  495. 

Meyer  v.  Ruff,  67. 

Meyer  v,  Sligh,  211,  413. 

Meyer  v,  Zingree,  87, 

Meyers  v.  Berotte,  559. 

]Meyer3  v,  Farrell,  45, 

Miami  Powder  Co,  v.  Hotchkiss,  4J>. 

Michael  v.  Thomas,  681. 

Michels  v.  Stork,  456. 


Ixxii 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Michew  v.  McCoj',  464 

Michigan  Central  R.  Co.  v.  Chicago, 

etc.,  R.  Co.,  824,  337. 
Michigan  Dairy  Co.  v.  Runnels,  185. 
Micky  V.  Stratton,  428. 
Middlebrook  v.  Ames,  40. 
Middleton  v.  Frame,  483. 
Middletou  Paper  Co.   v.  Rock  River 

Paper  Co.,  5,  338. 
Miere  v.  Brush,  478. 
Milbank  v.  Broadway  Bank,  147. 
Mildmay  v.  Smith,  394. 
Miles  V.  Brown,  212. 
Miles  V.  Buchanan,  357. 
Miles  V.  Butler,  690. 
Millar  v.  Babcock,  253,  418,  433,  437, 

443,  445. 
Millaudon  v.  Foucher,  93. 
Milldam  Foundry  v.  Hovey,  70. 
Milleken  v.  Dart,  571. 
Millekin  v.  Loring,  372. 
Miller  v.  Anderson,  383,  623. 
Miller  v.  Baker,  170,  242. 
Miller  v.  Bannister.  170. 
Miller  v.  Bowles,  572,  587. 
Miller  v.  BriukerhoflF,  86,  119. 
Miller  v.  Bryan,  563. 
Miller  v.  Chandler,  62,  70,  81,  186,  487. 
Miller  v.  Clark,  548. 
Miller  v.  C,  M.  &  St.  Paul  Ry.  Co., 

101. 
Miller  v.  Desha,  519. 
Miller  v.  Dungan,  3,  4,  426,  434,  448. 
Miller  v.  Eastman,  244. 
Miller  v.  Ewing,  5. 
Miller  v.  Fay,  159,  207,  228,  241,  242. 
Miller  v.  Ferry,  135. 
Miller  v.  Garrett,  698. 
Miller  v.  Godfrey,  485. 
Miller  v.  Handy,  440,  443,  445. 
Miller  v.  Hooe,  282. 
Miller  v.  Larson,  364. 
Miller  v.  Little,  496. 
Miller  v,  Mahatfy,  386. 
Miller  v.  Marigny,  407. 
Miller  v.  McLain,  652. 
Miller  v.  McMillan,  228. 
Miller  v.  McNair,  44. 


Miller  v.  Munson,  106,  124 

Miller  v.  O'Bannon,  356. 

Miller  v.  Railroad,  80. 

]\Iiller  V.  Railway,  101. 

Miller  v,  Richardson,  259,  376. 

Miller  v.  Scoville,  273. 

Miller  v.  Sharp,  422,  434,  451. 

Miller  v.  Sherry,  501. 

Miller  v.  State,  459. 

Miller  v.  Stewart,  682. 

Miller  v.  Whitehead,  458,  621. 

Millett  V.  Blake,  239. 

Milliken  v.  Bailey,  240. 

Milliken  v.  Dart,  47. 

Milliken  v.  Mannheimer,  350,  379. 

Million  V.  Commonwealth,  544. 

Millison  v.  Fisk,  289,  314,  315,  316. 

Mills  V.  Brown,  39,  95,  184 

Mills  V.  Camp,  210. 

Mills  V.  Martin,  442. 

Mills  V.  Stewart,  645. 

Mills  V.  Thompson,  561. 

Mills  V.  Thursby,  147. 

Millville  V.  Brown,  618. 

Miltenberger  v.  Lloyd,  471. 

Minis  V.  Parker,  271. 

Minis  V.  West,  279.      ' 

Minchen  v.  Peterson  Bank,  407. 

Minchm  v,  Moore,  363. 

Miner  v.  Rogers  Coal  Co.,  645, 

Mineral  Point  R.  R.   Co.  v.  Barron, 

508,  511. 
Mineral  Point  R.  R.  Co.  v.  Keep,  24. 
Minniece  v.  Jeter,  83. 
Minor  v.  Herriford,  394. 
Minza  v.  Zollicoflfer,  75. 
Miss.  Mills  V.  Meyer,  224. 
Miss.,  etc.,  R.  R.  Co.  v.  U.  S.  Express 

Co.,  327,  641. 
Missouri  Pac.  Co.  v.  Maltby,  509,  511. 
Missouri  Pac.  R.  Co.  v,  Flannigan, 

283. 
Missouri  Pac.  R.  Co.   v,  Sharitt,  509. 
Missouri  Pac.   R.  Co.   v.   Whipsker, 

5U6. 
Mitchell  V.  Burhngton,  438. 
Mitchell  V.  Byrne.  168,  268. 
Mitchell  V.  Carney,  485. 


TABLE    OF    CASES. 


Ixxiii 


Tlie  references  are  to  pages. 


Mitchell  V.  Chancellor,  136,  677. 
Mitchell  V.  Chandler,  136. 
Mitchell  V.  Chesnut,  487. 
Mitchell  V.  Dalton,  193. 
Mitchell  V.  Gooch,  400. 
Mitchell  V.  Green,  369. 
Mitchell  V.  Hinman,  399. 
Mitchell  V.  Mattingly,  688. 
Mitchell  V.  Merrill,  519. 
Mitchell  V.  Pinckney,  594. 
Mitchell  V.  Pitts,  100. 
Mitchell  V.  Shook,  31. 
Mitchell  V.  Skinner,  466,  467. 
Mitchell  V.  Sutherlands,  434. 
Mitchell  V.  United  States,  35. 
Mitchell  V.  Watson,  623,  640. 
Mitchell  V.  Woodson,  253. 
Mitchell's  Adm'r  v.  Gray,  438,  448, 

451. 
Mize  V.  Turner,  569. 
Mizell  V.  McDonald,  613. 
Mobile  V.  Rowland,  316, 
Mobile,  etc.,  R  Co.  v.  Barnhill,  512. 
Mobile  Ins.  Co.  v.  Teague,  129,  130. 
Mobile  R  Co.  v.  Turner,  316. 
Mobley  v.  Loubat,  275. 
Mock  V.  King,  292. 
Mocklee  v.  Gardner,  592.  ^ 

Mogarrieta  v.  Saenz,  418. 
Mohassuck  Felt  Mills   v.  Blanding, 

319. 
Moke  V.  Fell  man,  65. 
Moline,  etc.,  Co.  v.  Curtis,  79, 113,  483. 
Molm  V.  Barton,  396. 
Molton  V.  Escott,  560. 
Monroe  v.  Bishop,  72. 
Monroe  v.  Cutter,  531,  535. 
Montague  v.  Gaddis,  45,  47. 
Montague  v.  Mj'ers,  636. 
Monterey  v.  McKee,  73. 
Montgomery  v.  Tilley,  46. 
Montgomery  Co.  v.  Thomas,  686. 
Montgomery  Gaslight  Co.  v.  Merrick, 

377,  643,  650. 
Montpelier  &  Wells  River  R  R  Co. 

V.  Coffriu,  433. 
Montpelier,  etc.,  R  R.  Co.  v.  Coffrin, 

413,  437. 


Montrose  v.  Dodson,  359. 

Montrose,  etc.,  Co.  v.   Dodson,    etc., 

344. 
Mooar  v.  Walker,  314,  269. 
Moody  V.  Alter,  352,  356. 
Moody  V.  Levy,  86,  475. 
Moody  V.  Lucier.  546. 
Moody  V.  Payne,  183. 
Moon  V.  Hawks,  180. 
Moon  V.  Story,  513. 
Mooney  v.  Broadway,  394 
Mooney  v,  Moriarity,  501. 
aiooney  v.  Union  Pac.  R  R  Co.,  376, 

510. 
Moor  v.  Towle,  260. 
Moor  v.  Willenberg,  675. 
Moore  v.  Allain,  534,  535,  623,  626. 
Moore  v.  Angiolette.  485. 
Moore  v.  Chattanooga,  315. 
Moore  v.  Chicago,  etc.,  R.  R.  Co.,  503. 
Moore  v.  Circuit  Judge,  427. 
Moore  v.  Coates,  227. 
Moore  v.  Corley,  63.  474. 
Moore  v.  Davis,  627. 
Moore  v.  Dickerson,  71,  456. 
Moore  v.  Fedawa,  10,  620. 
Moore  v.  First  Nat.  Bank,  111. 
Moore  v.  Gammel.  684. 
Moore  v.  Geunett,  334. 
Moore  v.  Graham,  114,  165. 
Moore  v.  Graves,  190,  285. 
Moore  v.  Hamilton,  15. 
Moore  v.  Heaney,  506. 
Jloore  V.  Holt,  10,  27,  34,  35,  337,  550. 
Moore  v.  Jackson.  609,  611. 
Moore  v.  Kelly,  347. 
Moore  v.  Kidder,  206,  227,  331,  232. 
Moore  v.  Lowry,  634. 
Moore  v.  Mayor  of  Chattanooga,  316. 
Moore  v.  Mott,  522. 
Moore  v.  Murdock,  188. 
Moore  v.  Neill,  91. 
Moore  v.  Pillow,  200. 
Moore  v.  Railroad  Co.,  511. 
Moore  v.  Reaves,  579. 
Moore  v.  Reed,  637. 
Moore  v.  Sample,  618. 
IMoore  v.  Sheppard,  69. 


Ixxiv 


TABLE    OF   CASES. 


TJie  references  are  to  jiages. 


Moore  v.  Spackman,  645. 

Moore  v.  Stainton,  339. 

Moore  v.  Stanley,  252. 

Moore  v.  Stege,  574. 

Moore  v.  Thayer,  208,  623. 

Moore  v.  Westervelt,  395. 

Moore  v.  Willenberg,  12. 

Moore  v.  Whittenburg,  285. 

Moors  V.  Goddard,  259,  556. 

Morawitz  v.  Wolf,  488. 

Moresi  v.  Smith,  404. 

Moresi  v.  Swift,  10,  16,  405,  433,  540, 

558,  680. 
Morey  v.  Hoyt,  189,  241,  683. 
Morey  v.  Sheltus,  271. 
Morgan  v.  Avery,   41,   91,    465,    472, 

484. 
Morgan  v.  Campbell,  527,  573. 
Morgan  v.  Curtenius,  438. 
Morgan  v.  Furst,  178. 
Morgan  v.  House,  121. 
Morgan  v.  Ide,  180,  189. 
Morgan  \.  Johnson,  90,  235. 
Morgan  v.  Menzies,  144. 
Morgan  v.  Morgan,  137. 
Morgan  v.  Neville,  511,  647. 
Morgan  v.  Nunes,  27,  29,  33. 
Morgan  v.  Richards,  162. 
Morgan  v.  Spangler,  269. 
Morgan  v.  Wood,  575. 
Morgan  v.  Woods,  251. 
Moriarity  v.  Lovejoy,  566. 
Moritz  V.  Miller,  406. 
Morrill  v.  Brown,  281. 
Morrill  v.  Keyes,  223,  235. 
Morrill  v.  Law,  119. 
Morris  v.  Everly,  74. 
Morris  v.  Hall,  517. 
Morris  v.  Hogle,   252,  433,  443,  443, 

445. 
Morris  v.  Hoyt,  660. 
Morris  v.  Price,  696. 
Morris  v.  Shafer,  501. 
Morris  v.  Shew,  162. 
Morris  v.  Shryock,  195. 
Morris  v.  Trustees,  478. 
Morris  v.  Union   Pac.  R.  R.  Co.,  422, 

434. 


Morris  v.  Ward,  502. 

Morrison  v,  Alphin,  533. 

Morrison  v.  Blodgett,  619. 

Morrison  v.  Crawford,  677,  693. 

Morrison  v.  Fake,  119, 

Morrison  v,  Lovejoy,  93,  97,  158, 

Morrison  v.  New  Bedford',  etc,  648. 

Morrison  v.  Ream,  120, 

Morrow  v.  Weed,  444, 

Morse  v,  Betton,  657. 

Morse  v,  Goold,  442, 

Morse  v,  Hodsden,  523. 

Morse  v.  Holt,  357, 

Morse  v,  Hurd,  170,  188,  223,  243. 

Morse  v,  Marshall,  368,  381,  383. 

Morse  v,  Presby,  245, 

Morton  v,  Grafflin,  330. 

Morton  v.  Robards,  562. 

Morton  v.  Webb,  643. 

Moser  v.  Maberry,  369. 

Moses  V.  Arnold,  468. 

Moses  V.  Noble,  500. 

Moses  V.  Waterbury  Button  Co.,  517. 

Mosher  v.  Bartholow,  4. 

Mosher  v.  Banking  House,  353. 

Moss  V.  Sanger,  575. 

Mott  V.  Lawrence,  119. 

Mott  V.  Smith,  689. 

Moulon  V.  Trenton  Ins.  Co.,  331. 

Moursund  v.  Priess,  281,  367,  375. 

Moxley  v.  Ragan,  503. 

Moyer  v.  Lobengeir,  649. 

Mozarietta  v.  Saenz,  253. 

Mudge  V.  Lanning,  500. 

Mudge  V.  Steiuhart,  57,  113. 

Mueth  V.  Schardin,  370,  320,  337,  33a 

Muir  V,  Schenck,  302. 

Mulford  V.  Stalzenback,  441. 

Mull  V.  Jones,  506. 

Mullen  V.  Maguire,  390. 

Mullen  V.  Smith,  438. 

MuUer  v.  Leeds,  86. 

Mulloy  V.  White,  603. 

Mulock  V.  Wilson,  181. 

Mumper  v,  Wilson,  495,  509. 

Muncy  v.  Joest,  648, 

Mundy  v,  Andrews,  684. 

Munroe  v,  Cocke,  90. 


TABLE    OF   CASES. 


Ixxv 


Tlxe  references  are  to  pages. 


Munroe  v.  Frosh,  29. 
Munroe  v.  Luke,  208. 
Munroe  v.  Williams,  25. 
Munsheimer  v.  Manhattan,  etc.,  Co., 

89. 
Munzoheimer  v.  Heinze,  111. 
Munzenheinier  v.  Manhattan,  etc.,  84, 

138,  158. 
Murdock  v.  Daniel.  633,  637. 
Murdough  v,  lilcPlierrin,  1G5,  481. 
Muipliy  V.  Adams,  14 
Murphy  v.  Ames,  456. 
Murphy  v.  Baldwin,  25,  28,  29. 
Murphy  v.  Caldwell,  383. 
Murphy  v.  Crew,  606. 
Murphy  v.  Galloupe,  209, 
Murphy  v.  Jack,  97. 
Murphy  v.  Montandon,  13,  421. 
Murphy  v.  Purdy,  97. 
Murray  v.  Cone,  80,  139. 
Murray  v.  Elrige,  553. 
Murray  v.  Gibson,  544. 
Murray  v.  Hankin,  100. 
Murray  v.  Munford,  605,  696,  698. 
Murray  v.  Shearer.  527. 
Murray  v.  Vanderbilt,  464. 
Murrell  v.  Johnson,  289. 
Murtagh  v.  Connor,  405. 
Muser  v.  Kern,  407. 
Muser  v.  Lissner,  58. 
Musgrave  v.  Brady,  15,  479. 
Musgrove  v.  Mott,  113,  117. 
Muskingum     Valley     Turnpike    v. 

Ward,  251,  282. 
Muzzy  V.  Lautry,  500. 
Myatt  V.  Lockhart,  300. 
Myer  v.  Liverpool,  etc.,  Ins.  Co.,  307. 
Myer,  etc.,  Co.  v.  Malm,  483. 
Myers  v.  Baltzell,  388. 
Myers  v.  Beeman,  279. 
Myers  v.  Boj'd,  435. 
Myers  v.  Cole,  171. 
Myers  v.  Farrell,  4,  41,  44,  426,  434, 

684 
Myers  v.  Lewis.  80,  138,  477. 
Myers  v.  Mott,  495. 
Myers  v.  Myers,  220. 
Myt-rs  V.  Paxton,  13. 


Myers  v.  Perry,  470,  490. 

Myers  v.  Smith,  3.  5,  15,  275,  276,  382, 

425,  433,  459,  491,  531,  526. 
Myers  v.  Ulrich,  649. 
Myers  v.  Whitehart,  91,  486. 
Myers  v.  Whitehurst,  465. 
IMygatt  V.  Burton,  354 
Mynatt  v.  McGill,  504 

N. 

Nagel  V.  Loomis,  96,  248. 

Nailor  v.  French,  37. 

Nane  v.  Barberj',  216. 

Naper  v.  Noland,  93. 

Napoleon  v.  Etter,  476. 

Narraguagus  v.  Wentworth,  140. 

Narramore  v.  Clark,  291. 

N.  A.  R.  R  Co.  V.  Combs,  586. 

Naser  v.  First  N.  Bank,  201,  394 

Nash  V.  Brophy,  646. 

Nash  V.  Farrington,  497,  505. 

Nash  V.  Mallory,  242. 

Nashville  Bank  v.  Ragsdale,  495. 

Nashville  v.  Insurance  Co,  272. 

Nashville  v.  Potomac  Ins.  Co.,  382. 

Nason  v.  Esten,  330. 

Nassauer  v.  Techner,  539. 

National  Bank  v.  Barker,  467. 

National  Bank  v.  Brainard,  263,  637. 

National  Bank  v.  Chase,  269. 

National  Bank  v.  Huntington,  333. 

National  Bank  v.  Railroad  Co.,  260. 

National  Bank  v.  Stanley,  258. 

National  Bank  v.  Stelling,  48,  125, 
193. 

National  Bank  v.  Teal,  67. 

National  Bank  v.  Titsworth,  359. 

National  Bank  v.  Turner,  319. 

National  Bank  of  Commerce  v.  Tits- 
worth,  351. 

National  Bank  of  Missouri  v.  Stan- 
ley, 257. 

National  Broadway  Bank  v.  Barker, 
541. 

National  Furnace  Co.  v.  Mobile  Ix'on 
Works,  456. 

National  Papeterie  Co.  v.  Kinsey,  467. 


Ixxvi 


TABLE   OF   CASES. 


The  references  are  to  pages. 


National  Park  Bank  v.  Whitmore, 
49,  52. 

National  S.  L.  Bank  v.  Mech.  Nat. 
Bank,  168. 

Nations  v.  Johnson,  250,  428. 

Naumburg  v.  Hyatt,  494. 

Navigation  Co.  v.  Gates,  257. 

Naylor  v.  Dennie,  210, 

Naylor  v.  French,  32,  55. 

Nazoo  V.  Cragin,  426,  459. 

Nazro  v.  Oil  Co.,  73. 

Neal  V.  Bookout,  471. 

Neal  V.  Gordon,  98,  434,  469. 

Neal  V.  Newland,  556. 

Neale  v.  Ultz,  545,  554. 

Neally  \.  Ambrose,  361. 

Neally  v.  Judkins,  160,  479. 

Near  v.  Mitchell,  643. 

Neeves  v.  Scott,  438. 

Nelson  v.  Connor,  289. 

Nelson  v.  Cook,  221. 

Nelson  v.  Field,  91. 

Nelson  v.  Fuld,  99, 

Nelson  v.  Henry,  580. 

Nelson  v.  Hyde,  465,  471. 

Nelson  v.  Munch,  91,  94,  103, 108,  466, 
484. 

Nelson  v.  Sanborn,  351,  352. 

Nelson  v.  Simpson,  427,  433. 

Nelson  Distilling  Co,  v.  Creath,  48. 

Nelvitter  v.  Mansell,  42. 

Nenney  v.  Schulter,  540,  541,  548,  573. 

Nerac,  Estate  of,  290. 

Nesbitt  V.  Campbell,  372. 

Nesbitt  V.  Ware,  271, 

Nesmith  v.  Drum,  300. 

Nethercutt  v.  Herron,  549. 

Netson  v.  Simpson,  213. 

Neuer  v.  O'Fallon,  317. 

Neufelder  v.  Insurance  Co.,  75. 

Neuler  v,  O'Fallon.  289, 

Newark  v.  Funk,  317. 

Nevvbern  Gaslight  Co,  v.  Construc- 
tion Co.,  76. 

Newby  v.  Hill,  298. 

Newcomb  v.  Presbrey,  596. 

Newdigate  v,  Davy,  595, 

Newell  V.  Blair,  300,  368,  382. 


Newell  V.  Ferris,  263. 

Newell  V.    Great  Western  Railway 

Co.,  332. 
New  England  Ins.  Co.  v.  Chandler, 

265. 
New  Hanover  Bank  v.  Blossc'ii,  252. 
New  Haven   Co.   v.  Raymond,  462, 

516. 
New  Haven  Saw  Mill  Co.  v.  Fowler, 

289. 
N.  H.  Ins.  Co.  V.  Piatt,  199,  201. 
New  Orleans  v.  Garland,  93. 
New  Orleans  v.  Morris,  558. 
New  Orleans  Canal  and  Banking  Co. 

V.  Comly,  32,  41. 
New  Orleans,  etc.,  Co.  v.  Beard,  543. 
New  Orleans,  etc,  v.  Hemphill,  250, 

428. 
New  York  &  Erie  Bank  v.  Codd,  484. 
New  York  Ins.  Co.  v.  Roulet,  307, 
Newfeld  v.  Newfeld,  468. 
Newhall  v.  Kinney,  232,  618. 
Newland  v.  Reilly,  282. 
Newman  v.  Hexter,  91. 
Newman  v.  Hook,  210. 
Newman  v.  Kane,  395. 
Newman  v.  Ki-aim,  54,  433, 
Newman  v.  Manning,  377,  628,  651. 
Newman  v,  Willets,  181. 
Newton  v.  Adams,  398. 
Nichols  v.  Goodheart,   266,  270,  328, 

510. 
Nichols  V.  Hill,  658. 
Nichols  v.  Hooper,  282,  301. 
Nichols  V.  Levy,  438. 
Nichols  V.  Patten,  213,  227. 
Nichols  v.  Patton,  427,  434. 
Nichols  V.  Valentine,  395. 
Nicholson  v.  Crook,  260. 
Nicholson  v.  Leavitt,  55. 
Nicholson  v.  Walker,  270. 
Nicholson  v.  West,  274. 
Nickerson  v.  Chase,  270,  293,  372. 
Nickerson  v,  Nickerson,  272, 
JNickolls  V,  Scofield,  303, 
NicoUs  V,  Lawrence,  30,  280, 
Nicrose  v.  Irvine,  336. 
Nimmon  v.  Worthingtou,  582. 


TABLE   OF   CASES. 


Ixxvii 


Tlie  references  are  to  pages. 


Nims  V.  Ford,  323. 

Nims  V.  Spun-,  236. 

Nines  v.  Pyle,  301. 

Nixon  V.  Nash,  276. 

Noble  V.  Bourke,  637,  63a 

Noble  V.  Holmes,  170. 

Noble  V.  Merrill,  624. 

Noble  V.  Oil  Co.,  645. 

Noble  V.  Thomi)son  Oil  Co.,  647. 

Noble  V.  Smith,  298. 

Nockless  V.  Eggspieler,  677,  695. 

Nolen  V.  Crook,  258. 

Nolen  V.  Royston,  113,  115. 

Nolte  V.  Von  Gassy,  290,  328. 

Nolle  V.  Thompson,  12,  675. 

Noonan  v.  Pomeroy,  120. 

Norcross  v.  Benton,  372. 

Norcross  v.  Widgery,  577. 

Nordhaus  v.  Peterson  Bros.,  128,  688, 

691. 
Nordlinger  v.  Gordon,  479. 
Norman  v.  Horn,  80,  82,  224. 
Norris  v.  Burgoyne,  263. 
Norris  v.  Hall.  034. 
Norris  v.  Sowles,  171. 
Norris  v.  Watson,  211. 
North  V.  Belden,  563. 
North  V.  McDonald,  37,  38. 
North  Ala.  D.  Co.  v.  Orman,  24 
North  Central  R  Co.  v.  Eyder,  351, 

358. 
North   Chicago  Rolling   Mill  Co.  t. 

St.  Louis  Ore,  etc.,  Co.,  371. 
North  Star,  etc.,  Co.  v,  Ladd,  262,  322. 
Northfield,  etc.,  Co.  v.  Shapleigh,  352. 
Northam  v.  Cartwright,  298,  305. 
Northampton   Bank  v.   Wylie,   684, 

700. 
Northern  Bank  v.  Hunt's  Heirs,  150. 
Northwestern,  etc.,  Co.  v.  Mahaffy, 

578. 
Northwestern  Ins.  Co.  v,  Atkins,  272. 
Norton  v.  Clark,  292. 
Norton  V.  Flake,  116. 
Norton  v.  Insurance  Co.,  297,  298. 
Norton  v.  Kearnej%  170. 
Norton  v.  !Moyei-s,  591,  594. 
Norton  v.  Norton,  260. 


Norton  v.  Rock  Co.,  595. 

Norton  v.  Soule,  263,  272. 

Norvell  v.  Porter,  239,  319,  346,  353, 

453. 
Norwood  V.  Kirby,  026. 
N.  O.  M.  &  C.  C.  R.  Co.  V.  Long,  350. 
Noyes  v.  Brown,  298,  573. 
Noyes  v.  Canada,  555. 
Noyes  v.  Cunningham,  486. 
Noyes  v.  Foster,  643. 
Noyes  v.  Johnson,  570. 
Noyes  v.  Lane,  485. 
Nudd  V  Burrows,  440. 
Nuer  V.  O'Fallon,  259. 
Nugent  V.  Nugent,  252. 
Nugent  V.  Opdyke,  303. 
Nutter  V.  Connet,  11,  39,  46,  543,  554. 
Nutter  V.  Framingham,  etc.,  R.  Co., 

271,  373. 
Nye  V,  Liscomb.  282,  335,  454. 
Nye  V.  Van  Husan,  55. 

o. 

Oakes  v.  Marquardt,  390. 
Oakey  v.  Drummond,  234. 
Oakey  v.  Railroad  Co.,  381. 
Oakley  v.  Aspinwall,  424. 
Ober  V.  Matthews,  367. 
Oberfelder  v.  Kavanaugh,  170,  657. 
Oberne  v.  Gaylord,  684. 
Oberne  v.  O'Dounell,  82. 
Oberteuffer  v.  Harwood,  361. 
Oberton  v.  Williston,  190. 
O'Brian  v.  Young,  72. 
O'Brien  v.  Collins,  317,  553. 
O'Brien  v.  Coulter,  78. 
O'Brien  v.  Daniel,  443,  445. 
O'Brien  v.  Norris,  198. 
Ockermaij  v.  Cross,  195. 
O'Connell  v.  Ackerman,  276. 
O'Connell  v.  Reed,  66,  74 
O'Connor  v.  Blake.  614 
O'Connor  v.  O'Connor,  648. 
O'Connor  v.  Walter,  511. 
Odiorue  v.  CoUey,  190,  285,  401. 
Odom  V.  Shackelford,  240. 
O'Donald  v.  Constant,  198. 


Ixxviii 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


O'Donohue  v.  Simmons,  178. 

Oelrichs  v.  Spain,  698. 

Oeters  v.  Aehle,  431,  434 

O'Farrell  v.  Heard,  132,  171,  479,  581. 

O'Farrell  v.  Stocliton,  130. 

Oflfut  V.  King,  78. 

Offutt  V.  Edwards,  33,  485,  681. 

Ofterdinger  v.  Ford,  338. 

Ogden  V.  Walters,  60. 

O'Grady  v.  Julian,  691. 

O'Hara  v.  Improvement  Co.,  234. 

Ohio  &  Miss.  R.  R  Co.  v.  Alvey,  569, 

644.  647. 
Ohio,  etc.,  Co.  v.  Insurance  Co.,  114, 
Ohio,  etc.,  R.  R.  Co.  v.  Schultz,  441. 
Ohors  V.  Hill,  303. 
Olcott  V,  Robinson,  353. 
Oldham  v.  Ledbetter,  360. 
Oldham  v.  Scrivener,  386. 
Olds  V.  Carj^  681. 
O'Leary  v.  Bradford,  659. 
Oliphant  v.  Mansfield,  698. 
Oliver  v,  Athey,  509. 
Oliver  v.  C.  &  A.  R  R  Co.,  318,  320, 

463. 
Oliver  v.  Gwin,  493. 
Oliver  v.  Lake,  188. 
Oliver  v.  Man.  Co.,  96. 
Oliver  v.  Smith,  289. 
Oliver  V.  Town  &  Watson,  108,  125. 
Oliver  v.  Towns,  195. 
Oliver  v.  Wilson,  33,  148,  477. 
Olmstead  v.  Rivers,  66,  129,  465. 
O'Neal  v.  Bank,  681. 
O'Neal  v.  Owens,  478. 
O'Neal,  Ex  parte,  636. 
O'Neill  V.  Sewell,  308. 
Ouley  V.  Shepherd,  237. 
Opdyke,  Ex  parte,  382. 
Oppenheim  v.  Pittsburgh,  etc.,  R  Co., 

651. 
Oppenheimer  v.  Marr,  287,  288. 
Ordiorne  v.  Colley,  295. 
Ordvvay  v.  Remington,  273. 
O'Reer  v.  Strong,  93. 
Oregon,  etc.,  Co.  v.  Gates,  258,  397. 
O'Reilly  v.  Freel,  484,  486. 
Oriental  Bank  v.  Insurance  Co.,  632. 


Ormond  v.  Moyer,  379. 
Ormsby  v.  Anson,  363. 
Orr  V.  Lindsey  Shoe  Co.,  54. 
Orth  V.  Jennings,  618. 
Osborne  v.  Jordan,  363. 
Osborne  v.  Robbins,  466,  471. 
Osborne  v.  Schiffer,  476. 
Osborne  v,  Schutt,  506. 
Osgood  V  Blackmore,  442. 
Osgood  v.  Breed,  7. 
Osgood  V.  Holyoke,  160,  479. 
Osgood  V.  Maguire,  510. 
Otis  V.  Benedict,  485. 
Otis  V.  Ford,  272. 
Otis  V.  Jones,  470. 
Otley  V.  Manning,  43. 
Ott  V.  Smith,  51. 
Our  House  No.  3  v.  State,  669. 
Overton  v.  Cheek,  165. 
Overton  v.  Hill,  28. 
Owen  V.  Dixon,  539. 
Owen  v.  Estes.  368. 
Owen  v,  Jordan,  443. 
Owens  V.  Johns,  83. 
Owens  V.  Starr,  169. 
Oysted  v.  Shed,  232. 
Ozmore  v.  Hood,  13. 

P. 

Pace  V.  Lee,  540,  558. 
Pace  V.  Smith,  366. 
Pach  V.  Gilbert,  487,  544. 
Pacific  Nat.  Bank  v.  Mixter,  490. 
Packet  Co.  v.  Robertson,  513. 
Packord  v.  Wood,  197. 
Padden  v.  Moore,  337,  340. 
Paddock  v.  Kitredge,  592,  593. 
Paddock  v.  Matthews,  470,  491. 
Paddock,  etc.  v.  Mason,  177,  655. 
Padfield  v.  Brine,  199. 
Page  V.  Belt,  221,  657. 
Page  V.  Crosby,  297. 
Page  V.  Ford,  138,  139. 
Page  V.  Generes,  227,  235. 
Page  V.  Jewett,  467.  , 

Page  V.  Latham,  13. 
Page  V.  Long,  530. 


TABLE   OF    CASES. 


Ixxix 


The  referencea  are  to  pages. 


Page  V.  Thompson,  303. 

Page  V.  Thrall,  399. 

Paihles  v.  Roux,  490. 

Paine  v.  Farr,  227. 

Paine  v.  Holliday,  536.  540. 

Paine  v.  Mooreland,  247,  249,  415, 434. 

Paine  v.  Tilden,  479. 

Painter  v.  Gibson,  127. 

PaJacious  v.  Braslier,  516. 

Palmer  v.  Ballard,  648. 

Palmer  v.  Pole}',  130. 

Palmer  v,  Gilmore,  383. 

Palmer  v.  Hawes,  43. 

Palmer  v.  Noyes,  92. 

Palmer  v.  Oakley,  254,  428. 

Palmer  v.  Thayer,  240. 

Palmer  v.  Vance,  523. 

Paltzer  v.  Bank,  544. 

Pancake  v.  Harris,  122. 

Pancoast  v.  Washington,  3,  426. 

Pangburn  v.  Fatridge,  242. 

Panhandle  N.  Bank  v.  Still,  62,  63. 

Paper  Co.  v.  Paper  Co.,  165. 

Paradise  v.  Farmers'  &  Merchants' 

Bank,  190,  220. 
Parham  v.  McMurray,  499. 
Park  V,  Hamron,  479. 
Park  V.  Matthews,  264,  265, 
Park  V.  Mighell,  519. 
Park  V.  Trustees  of  Williams,  375. 
Park  Bank  v.  Whitmore,  81. ' 
Parker  v.  Brady,  4,  470,  604. 
Parker  v.  Dauforth,  277. 
Parker  v.  Donnallj',  292. 
Parker  v.  Farr,  521. 
Parker  v.  Guillow,  276. 
Parker  v.  Kinsman,  412. 
Parker  v.  Overman,  85. 
Parker  v.  Page,  364. 
Parker  v.  Pistor,  619. 
Parker  v.  Porter,  496. 
Parker  v.  Scott,  92,  124. 
Parker  v.  Walrod,  93,  121. 
Parker  v.  Wilson,  364,  646. 
Parker  v.  Wright,  276. 
Parkham  v.  Randolph,  594. 
Parks  V.  Adams,  8G,  305. 
Parks  V.  Cushmau,  292,  494. 


Parks  V.  Sheldon,  527. 

Parks  V.  Turner,  66. 

Parks  V.  Young,  620,  690. 

Parlin  v.  Spencer,  556,  564. 

Parmele  v.  Johnson,  125. 

Parmele  v.  McLaughlin,  580. 

Par  melee  v.  Johnston,  92. 

Parmenter  v.  Childs,  357. 

Parmer  v.  Ballard,  377. 

Parrott  v.  Dearborn.  395. 

Parsons  v.  Clark,  269. 

Parsons  v.  Joseph,  336. 

Parsons  v.  McGavock,  316. 

Parsons  v.  Paine,  4,  251,  606. 

Parsons  v.  Root,  373. 

Parsons  v.  Sprague,  470,  612. 

Parsons  v.  Stockbridge,  42,  109. 

Parsons  v.  Wells,  534. 

Patch  V.  Wessels,  10, 206, 212, 315, 396. 

Pate  V.  Bacon,  582. 

Patrick  v.  Baxter,  505. 

Patrick  v.  Montader,  239. 

Patrick  v.  Solinger.  100,  479. 

Patten  v.  Wilson,  298. 

Patterson  v.  Caldwell,  641. 

Patterson  v.  Delaney,  91,  %. 

Patterson  v.  Goodrich,  465,  466,  471. 

Patterson  V.  Gulnare,  114,  115. 

Patterson  v.  Harland,  268. 

Patterson  v.  Laugh  1  in,  31. 

Patterson  v.  Perry,  263. 

Patterson  v.  Stephenson,  400,  437, 549. 

Patton  V.  Garrett,  226, 655,  680,  696. 

Patton  V.  Gates,  306. 

Patton  V.  Smith,  271. 

Paul  V,  Burton,  213. 

Paul  V.  Hussey,  444. 

Paul  V.  Paul,  271,  385. 

Paul  V.  Reed,  271. 

Paul  V.  Slason,  399. 

Paul  V.  Virginia,  333. 

Paul  V.  Ward,  475. 

Pawley  v.  Gaines,  287. 

Pax  ton  V.  Moravek,  657,  693. 

Paxton  V.  Steckel,  170,  242. 

Payne  v.  Able,  528. 

Payne  v.  Discus,  447. 

Payne  v.  Drew,  420. 


Ixxx 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Payne  v.  Snell,  491,  523. 
Peabody  v.  Maguire,  260. 
Peace  v.  Jones,  273. 
Peacock  v.  Bell,  442. 
Peacock  v.  Pembroke,  203. 
Peacock  v.  AVildes,  31. 
Peake  v.  Camei'on,  495. 
Pearce  v.  Baldridge,  233. 
Pearce  v.  Bell,  65. 
Pearce  v.  Maguire,  513,  523. 
Pearce  v.  Shorter,  376. 
Pearre  v.  Hawkins,  106. 
Pearson  v.  Gayle,  132. 
Pease  v.  Underwriters'  Union,  336. 
Peaslee  v.  Haberstro,  165. 
Peat  Co.  V.  Tuck,  73. 
Peay  v.  Morrison,  78. 
Pecard  v.  Home,  652. 
Peck  V.  Barnum,  277. 
Peck  V.  Fisher,  182. 
Peck  V.  Guerny,  593. 
Peck  V.  Jeuness,  468. 
Peck  V.  Sill,  547. 

Peck  V.  Stratton,  371,  557,  559,  560. 
Peck  V.  Webber,  10,  505. 
Peck  V.  Whiting,  539. 
Peck  ham  v.  Glass  Co.,  224. 
Peckham  v.  North  Parish  in  Haver- 
•       hill,  331. 
Peebles  v.  Meeds,  262. 
Peebles  v.  Weir,  164,  463. 
Peeler  v.  Stebbins,  394 
Peet  V.  McDaniel,  271. 
Peet  V.  Whitmore,  307. 
Peevey  v.  Cabaniss,  533. 
Pefley  v.  Johnson,  682. 
Peiser  v.  Cushman,  141. 
Pellman  v.  Hart,  302. 
Pelton  V.  Platner,  244. 
Pendleton  v.  Perkins,  78,  314,  317. 
Pendleton  v.  Smith,  469. 
Pendleton  v.  St.  Louis,  316, 
Penfield  v.  Harris,  456. 
Penhallow  v.  Dwight,  211. 
Peninsular  Stove  Co.  v.  Hosmer,  320. 
Penman  v.  Gardner,  471. 
Penn  v.  Pelan,  356. 
Pennebaker  v.  Tomlinson,  308. 


Pennell  v.  Grubb,  373. 

Penney  v.  Little,  610,  616. 

Penniman  v.  Daniel,  106,  113. 

Penniman  v.  Ruggles,  259,  387. 

Penniman  v.  Smith,  301. 

Pennoyer  v.  Neff,  3,  112,249,255,422, 
452. 

Pennsylvania  R.  Co.  v.  Pennock,  324. 

Pennsylvania  R.  R.  v.  Peoples,  76, 
324. 

Pennsylvania  Steel  Co.  v.  New  Jer- 
sey Southern  R.  R.  Co.,  559. 

Penton  v.  Brown,  218. 

People  v.  Baker,  426,  438. 

People  v.  Baruett,  463. 

People  V.  Blanchard,  89. 

People  V.  Bradley,  463. 

People  V.  Boylan,  71. 

People  V.  Cameron,  4,  107,  491,  505, 
514,  531. 

People  V.  Cass  Circuit  Judge,  364. 

People  V.  Dunning,  165. 

People  V.  Gray.  253. 

People  V.  Hubbard,  318,  319. 

People  V.  Huber,  353. 

People  V.  Johnson,  300. 

People  V.  Koeber,  443. 

People  V.  Lucas,  661. 

People  V.  Mayor,  etc.,  316. 

People  V.  McClay,  26. 

People  V.  Recorder,  106. 

People  V.  Reeder,  404. 

People  V.  Schuyler,  170,  225,  661. 

People  V.  Steuben,  165. 

People  V.  Van  Buren,  78. 

People  V.  Wheeler,  336. 

People's  Bank  v.  Barbour,  267. 

People's  Bank  v.  Egg-Case  Co.,  66. 

People's  Bank  v.  Shryock,  618. 

People's  Banli  v.  West,  227,  235,  546. 

Peoria  Ins.  Co.  v.  Warner,  16. 

Pepper  v.  Dunlap,  534. 

Perea  v.  Colo.  N.  Bank,  384. 

Perego  v.  Bonesteel,  287. 

Perine  v.  George,  381. 

Perkerson  v.  Snodgrass,  475. 

Perkins  v.  Bragg,  499,  501,  505,  609, 
611. 


TABLE    OF    CASES. 


Ixxxi 


TJie  references  are  to  images. 


Perkins  v.  Guy,  275. 
Perkins  v.  McDowell,  364 
Perkins  v.  Parker,  G53. 
Perkins  v.  Piko,  1."). 
Perkins  v.  Pitman,  17G. 
Perley  v.  Foster,  393. 
Perminter  v.  McDaniel,  129,  515. 
Perrill  v.  Kauffman,  107,  124. 
Perrin  v.  Claflin,  224. 
Perrin  v.  Leverett,  232. 
Perrin  v.  :\[c.Mann,  700. 
Perrine  v.  Evans,  129,  225 
Perry  v.  Carr,  218. 
Perry  v.  Coates,  199,  201.  ; 
Perry  v.  Post,  513,  518. 
Perry  v.  Sliarpe,  239. 
Perry  v.  Stephens,  447. 
Perry  v.  Thornton,  292. 
Perry  v.  Wasliburn,  373. 
Perry  t.  WiUiams,  170,  188,  223. 
Peru  Plow  Co.  v.  Benedict,  472. 
Peters  v.  Conway,  216. 
Peters  v.  League,  357. 
Peters  v.  Schoelkopf,  516. 
Peters  v.  The  Warren  Ins.  Co.,  7. 
Peterson  v.  Loring.  262,  273. 
Pfitit  V.  Mercer,  680. 
Petring  t.  Chrisler,  516. 
Petring  v.  Heer,  568. 
Petters  v.  McClannahan,  441. 
Pettes  V.  Spalding,  276. 
Pettibone  t.  Griswold,  563. 
Pettibone  v.  Stevens,  43. 
Pettingill  v.  Andr.  R.  R.  Co.,  888. 
Pettit  V.  Booming  Co.,  319. 
Pettit  V.  Mercer,  128,  677. 
Pettit  V.  Owen,  680. 
Petty  V.  Clark,  592. 
Petty  T.  Frick  Co.,  255,  455. 
Petty  T.  Lang,  212,  226. 
Pfoutz  V.  Com  ford.  27,  33. 
Pharr  v.  Reynolds,  627. 
Phelps  V.  Baker,  402,  433. 
Phelps  V.  Boughton,  351,  458. 
Piielps  V.  Campbell,  700. 
Phelps  V.  Coggeshall,  696. 
Phelps  V.  Delmore,  211. 
Phelps  V.  Holker,  3,  426,  483,  451. 
F 


Phelps  V.  Railroad  Co.,  263. 

Phelps  V.  White,  .593. 

Phelps  V.  Young,  90,  93. 

Phila.,  etc.,  R.  Co.  v.  Kent,  etc.,  R  Co., 

185. 
Philips  V.  Stewart,  607. 
Phillips  V.  Ash.  77,  622. 
Phillips  V.  Bridge,  395,  405,  680 
Phillips  V.  Cook,  183,  618. 
Phillips  V.  Germon,  274,  348. 
Phillips  V.  Harvey,  683. 
Phillips  V.  Hines,  5,  521. 
Phillips  V.  Newton,  570. 
Phillips  V.  Welsh,  419,  433,  465. 
Phillipsburg  Bank  v.  Lackawanna  R. 

R.  Co.,  24.  25,  483,  485. 
Philpott  v.  Newman,  158,  479. 
Phipps  V.  Rieley,  257.  366,  682. 
Phoenix  Ins.  Co.  v.  Willis,  273,  322. 
Pickard  v.  Samuels,  45. 
Pickering  v.  Wendell,  259. 
Pickett  V.  Ferguson,  509. 
Pickhardt  v.  Antony,  85,  92. 
Pickler  v.  Rainey,  379. 
Picquet  V.  Swan,  188, 268,  292,  368,440, 

447. 
Pier  V.  Armory,  246. 
Pierce  v.  Atwood,  162. 
Pierce  v.  Bell,  481. 
Pierce  v.  Benjamin,  681. 
Pierce  v.  Boston,  372. 
Pierce  v.  Carleton,  190,  271,  285,  288, 

377,  383. 
Pierce  v.  Chicago,   etc.,   R.  Co.,  506, 

509. 
Pierce  v.  Crompton,  468. 
Pierce  v.  Hall.  567. 
Pierce  v.  Jackson,  228,  495,  518,  540. 
Pierce  v.  Jennings,  77. 
Pierce  v.  flyers,  485. 
Pierce  v.  Partridge,  548. 
Pierce  v.  Railway  Co.,  510,  627. 
Pierce  v.  Richardson,  469. 
Pierce  v.  Shorter,  200,  201. 
Pierce  v.  Strickland,  139,  232, 244, 395. 
Pierce  v.  Wade,  623. 
Pierce  v.  Whiting,  515,  522. 
Pierse  v.  Miles,  116,  139,  682. 


Ixxxii 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Pierse  v.  Smith,  92,  97,  116,  119. 

Pierson  t.  Hovey,  400. 

Pierson  v.  McCahill,  643. 

Pierson  v.  Mauning,  48. 

Pierson  v.  Robb,  616. 

Pierson  v.  Truax,  503. 

Pierson  v.  Weller,  265. 

Pigue  V,  Young,  483. 

Pilling  V.  Otis,  51. 

Pillsbury  v.  Small,  403. 

Pinney  v.  Hersh field,  681. 

Pinson  v.  Kirsh.  680. 

Pinyan  v.  Berry,  375. 

Pioneer  Printing  Co.  v.  Sanborn,  384. 

Piper  V.  Billiard,  577. 

Piper  V.  Piper,  271,  292,  295,  885. 

Piscataqua  Bank  v.  Turnley,  75. 

Piscataqus  v.  Kingsbury,  590. 

Pitkins  V.  Boyd,  108. 

Pitkins  V.  Johnson,  606. 

Pitman  v.  Searcey,  172. 

Pitts  V.  Boroughs,  32. 

Pitts  V.  Mower,  303, 

Pitts  V.  Scribner,  467. 

Pittstown  V.  Plattsburgh,  316. 

Pixley  V.  Huggins,  617,  618. 

Pixley  V.  Reed,  676,  691. 

Place  V.  Sweetzer,  618. 

Plant  V.  Mutual  Ins.  Co.,  360,  362. 

Plant  V.  Smythe,  475,  505,  617. 

Planters'  Bank  v.  Byrne,  16, 134,  169, 
469,  477. 

Planters'  &  Merchants'  Bank  v.  An- 
drews, 24,  137,  148. 

Planters'  &  Merchants'  Bank  v.  Leav- 
ens, 330. 

Plater  v.  Hepburn,  601. 

Piatt  V.  Brown,  218. 

Plattsburgh  Bank  v.  Brainard,  291. 

Plume,  etc.,  Co.  v.  Caldwell,  570,  576. 

Plummer  v.  Plummer,  585. 

Plummer  v.  Rundlett,  261. 

Plumpton  V.  Cook,  478. 

Plunkett  V.  Sauer,  672. 

Plympton  v.  Bigelow,  214,  329,  331, 
335. 

Poage  V.  Poage,  93. 

Polk  V.  Wendall,  592. 


Pollard  V.  Ross,  287. 

Pollard  V.  Wegener,  246. 

Polley  V.  Lenox  Iron  Works,  220. 

Pollock  V.  Gantt.  684. 

Pomeroy  v.  Betts,  253. 

Pomeroy  v.  Kingsley,  403. 

Pomeroy  v.  Ricketts,  90,  96,  461. 

Pomeroy  v.  Stevens,  562. 

Pomroy  v.  Parmlee,  220. 

Pomroy  v.  Parnelle,  296. 

Pond  V.  Baker,  16,  227,  229,  232,  233, 

400,  656. 
Pond  V.  Griffin,  11,  553. 
Pond  V.  Skidmore,  210. 
Ponton  V.  Griffin,  298. 
Pool  V.  Ellison,  177. 
Pool  V.  San  ford,  573. 
Pool  V.  Symonds,  395. 
Pool  V.  Webster,  15,  80. 
Poole  V.  Carhart,  303. 
Poole  V.  Dyer,  530. 
Pope  V.  Cutler,  254,  428. 
Pope  V.  Haman,  619. 
Pope  V.  Hibernia  Ins.  Co.,  64,  69,  88, 

360. 
Pope  V.  Hunter,  134,  477. 
Pope  V.  Insurance  Co.,  376. 
Pope  V.  Salomons,  78. 
Popplewell  V.  Hill,  676. 
Port  V.  United  States,  593. 
Porter  v.  Brooks,  13,  14 
Porter  v.  Bullard,  298. 
Porter  v.  Byrne,  206,  232,  238. 
Porter  v.  Earth  man,  555. 
Porter  v.  Hildebrand,  75,  284,  827. 
Porter  v.  Knight,  687. 
Porter  v.  Miller,  166. 
Porter  v.  Millett,  616. 
Porter  v.  Partee,  602. 
Porter  v.  Pico,  207,  228,  230,  241,  470, 

616. 
Porter  v.  Stapp,  173. 
Porter  v.  Stevens,  371,  384 
Porter  v.  West,  303. 
Posey  V.  Buckuer,  31. 
Post  V.  Bird,  237. 
Post  V.  Bowen,  304 
Post  V.  Leet,  595. 


TABLE    OF    CASES. 


Ixxxiii 


The  references  are  to  pages. 


Post  V.  Love,  292,  295. 

Posthoff  V.  Schreiber,  570. 

Poteet  V.  Bond,  527. 

Potomac  Steamboat  Co.  v.  Clyde,  426, 
431,  432,  433,  442,  456,  457,  459. 

Potshinsky  v,  Krempkan,  504. 

Potter  V.  Baker,  147. 

Potter  V.  Cain,  272. 

Potter  V.  Phillips,  386. 

Potter  V.  Sanborn,  29. 

Potter  V.  Stevens,  641. 

Pottier  &  Stymus  Manuf.  Co.  v.  Tay- 
lor, 308. 

Pounds  V.  Hamner,  374,  698. 

Powell  V.  Aiken,  496. 

Powell  V.  Kelly,  194. 

Powell  V.  Matthews,  53. 

Powell  V.  McKechnie,  210,  894. 

Powell  V.  McKee,  220. 

Powell  V,  Rankin,  190. 

Powell  V.  Sammons,  271. 

Powers  V.  Hurst,  03. 

Powers  V.  Large,  55.  539, 

Powers  V.  London  Bank,  87, 

Powers  V .  People,  442. 

Prader  v.  Grimm,  697. 

Prather  v.  Chase,  241. 

Pratt  v.  Albright,  340. 

Pratt  v.  Cunliff,  648. 

Pratt  V.  Sanborn,  346. 

Pratt  V.  Wheeler,  206,  29a 

Pratt  V.  Young,  346. 

Preble  v.  Conger,  268. 

Prentice  v.  Pleasanton,  265. 

Prentiss  v.  Bliss,  191,  285,  287. 

Prentiss  v.  Schirmer,  43. 

Prescott  V.  Heard.  562,  577. 

Prescott  V.  Hull,  372.  563. 

Prescott  V.  Locke,  197. 

President  of  Union  Turnpike  Co.  v. 
Jenkins,  316. 

Presler  v.  Turner,  648. 

Pressnall  v.  Mabray,  271. 

Preston  v.  Cooper,  676. 

Preston  v.  Frye,  591,  592,  594. 

Preston  v.  Hood,  527. 

Preston  v.  Yates,  177. 

Prewitt  V.  Carmichael,  75. 


Price  v.  Bradford,  306. 

Price  v.  Brady,  200, 

Price  v.  Cox,  71,  112. 

Price  V.  Higgins,  640. 

Price  V.  Jackson,  585. 

Price  V.  Kennedy,  514. 

Price  V.  Merritt,  16. 

Price  V.  Reed,  466. 

Priest  V.  Rice,  562,  563,  578,  579. 

Prince  v.  Clark,  114,  530. 

Princeton  Manuf.  Co.  v.  White,  98. 

Prins  V.  Hinchliff,  87. 

Probate  Court  v.  Niles,  20a 

Probst  V.  Scott,  202. 

Proctor  V.  Greene,  320,  568. 

Proctor  V.  Lane,  267. 

Proctor  V.  State,  442. 

Propeller  Hilton  v.  Miller,  667. 

Proper  v.  Cobb,  187. 

Proseus  v.  Mason,  623. 

Proskey  v.  West,  131,  137,  148. 

Prout  V.  Gregory,  286. 

Prout  V.  Grout,  202. 

Prout  V.  Vaughan,  261, 

Providence  Bank  v.  Benson,  297. 

Providence  &  Stonington  S.  S.  Co. 

v.  Va.  Fire  &  Marine   Ins.  Co., 

202. 
Pruitt  v.  Armstrong,  508. 
Pry  V.  Hannibal  &.  St.  Jo.  R.  R.  Co., 

456,  458. 
Publishing  Co.  v.  Hitson,  222,  541. 
Puckett  V.  Drug  Co.,  63. 
Puflf  V.  Hutcher,  650. 
Puffer  V.  Graves,  650. 
Pugh  V.  Arton,  190. 
Pulliam  V.  Aler,  649. 
Pulliaiu  V.  Newberry,  576. 
Pull  is  V.  Fox,  275. 
Pulsifer  v.  Waterman,  181. 
Pupke  V.  Mead  or.  385. 
Purcell  V.  McFarland,  165. 
Pur  cell  V.  Steele,  515. 
Purdy  V.  Irwin,  617. 
Purnell  v.  Frank,  63 
Purves  v.  Lex,  638. 
Putnam,  Ex  parte,  488. 
Putnam  v.  Banking  Co.,  234 


Ixxxiv 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Putnam  v.  Hall,  164. 
Putnam  v.  Osgood,  50. 
Pyle  V.  Craven,  251,  253. 
Pyrolusite  v.  Ward,  23. 

Q. 

Quarl  V.  Abbett,  78,  167. 
Quarles  v.  Robinson,  89,  119. 
Quebec  Bank  v.  Carroll,  36. 
Quigg  V.  Kittredge,  370. 
Quillen  v.  Arnold,  531. 
Quinby  v.  Conlan,  496. 
Quine  v,  Mayes,  490,  493. 
Quinland  v.  Danford,  473,  483. 
Quiun  V.  Blanck,  383. 
Quinn  v.  Halbort,  567. 

R. 

Pace  V.  Maloney,  246,  434. 

Rachelman  v.  Skinner,  676. 

Rae  V.  Brown,  695. 

Raefle  v.  Moore,  292,  295. 

Raid  V.  Pelletier,  44. 

Raiguel  v.  McConnell,  200. 

Railroad  Co.,  Ex  parte,  253,  426,  432, 

436,  440,  442,  469. 
Railroad  Co.  v.  Baker,  511. 
Railroad  Co.  v.  Barron,  513. 
Railroad  Co.  v.  Dooley,  510. 
Railroad  Co.  v.  Gibson,  257. 
Railroad  Co.  v.  Ketchum,  432. 
Railroad  Co.  v.  Maltby,  510. 
Railroad  Co.  v.  Payne,  372. 
Railroad  Co.  v.  Pennock,  329. 
Railroad  Co.  v.  People,  36. 
Railroad  Co.  v.  Peoples,  284,  382. 
Railroad  Co.  v.  Tapia,  695. 
Railroad  Co.  v.  Todd,   360,  603,   623, 

628. 
Railway  Co.  v.  Gibson,  257. 
Railway  Co.  v.  Ragland,  506. 
Railway  Co.  v.  Rollins,  364. 
Railway  Co.  'v.  Smeeton,  263,  339. 
Rainwater  v.  Faconesowitch,  42. 
Rainwater,  etc.,  Co.  v.  Oneal,  91. 
Ramsey  v.  Glenn,  564. 


Rancher  v.  McElhenny,  487. 

Rancher  v.  McElhinney,  614. 

Rand  v.  White  Mountains  R.  R,  371. 

Randall  v.  Way,  373. 

Randolph  v.  Heaslip,  636. 

Randolph  v.  Little,  505,  506,  633,  637. 

Randolph  v.  McCain,  45. 

Randolph  v.  Randolph,  309. 

Ranft  V.  Young,  613. 

Rankin  v.  Bell,  691. 

Rankin  v,  Dulauey,  338. 

Ranlett  v.  Blodgett,  174,  176,  656. 

Ranlett  v.  Constance,  680. 

Panning  v.  Reeves,  135,  478. 

Ransom  v.  Halcott,  217,  656. 

Ransom  v.  Hays,  271. 

Ransom  v.  Williams,  442. 

Rapine  v.  McPherson,  228. 

Rapp  V.  Kyle,  247. 

Rarechide  v.  Enterprise,  etc.,  Co.,  557. 

Raspilliar  v.  Brownson,  677. 

Rathbone  v.  London,  462,  502. 

Rauseh  v.  Moore,  100. 

Ravenga  v.  IMackintosh,  690. 

Raventas  v.  Green,  311. 

Raver  v.  Webster,  75,  690. 

Rawles  v.  People,  158. 

Rawlins  v.  Pratt,  557. 

Rawlins  v.  Powers,  57. 

Rawlins  v.  Nickham,  593. 

Ray  V.  Faulkner,  299. 

Ray  V.  Underwood,  282. 

Raymond  v.  Bell,  444. 

Raymond  v.  Green,  142,  672,  695. 

Raymond  v.  Narragansett  Co.,  383. 

Raymond  v.  Rockland  Co.,  336. 

Rayne  v.  Taylor,  25,  29. 

Raynes  v.  Lowell,  etc.,  Society,  265. 

Raynolds  v.  Ray,  208. 

Raynor  v.  Pacific  National  Bank,  168, 
169. 

Read  v.  Jeffries.  12. 

Read  v.  Sprague,  406. 

Read  v.  Ware,  73,  472. 

Reagan  v.  Kitchen,  519. 

Reams  v.  McNail,  169. 

Reaugh  v.  McConnel,  459. 

Recht  v.  Kelly,  503. 


TABLE   OF   CASES. 


Ixxxv 


Tlie  references  are  to  pages. 


Red  V.  Powers,  265. 

Redd  V.  Burns,  300. 

Reddick  v.  Smith,  191,  285,  287. 

Reddy  v.  Bego,  34 

Redgrave  v.  Hurd,  593. 

Reding  v.  Ridge,  93. 

Redington  v.  Frye,  15. 

Redman  v.  White,  304,  638. 

Redondo  v.  Brewer,  77. 

Redus  V.  Wofford,  13,  82,  242. 

Redwood  v.  Consequa,  36,  122. 

Redwitz  v.  Waggaman,  560 

Reed,  Ex  parte,  661. 

Reed  v.  Bagley,  155. 

Reed  v.  Bank  of  Ky.,  130. 

Reed  v.  Beach,  76. 

Reed  v.  Bolt,  557. 

Reed  v.  Ennis.  482,  543. 

Reed  v.  Fletcher,  352. 

Reed  v.  Howard,  186,  618. 

Reed  v.  Ketch,  27. 

Reed  v.  Maben,  474,  482. 

Reed  v.  Mayhew,  483. 

Reed  v.  McCloud,  38,  108. 

Reed  v.  Ownby,  495. 

Reed  v.  Perkins,  236. 

Reed  v.  Samuels,  692. 

Reed  v.  Sprague,  190. 

Reed  v.  Whitton,  648. 

Reed's  Appeal,  25. 

Rees  V.  Augustine,  482. 

Reese  River  S.  M.  Co.  v.  Smith,  598. 

Reeve  v.  Smith,  298. 

Reeves  v.  Clark,  443. 

Reeves  v.  Coml}%  32,  41. 

Regan  v.  Pac.  R  R.  Co.,  371,  384. 

Regenstein  v.  Pearlstein,  192,  450. 

Regina  v.  Hartington,  7. 

Regina  v.  Wye.  7. 

Reid  V.  McLeod,  277. 

Reid  V.  Tucker,  204. 

Reidhar  v.  Berger,  680,  685. 

Reiflf  V.  Mack,  507. 

Reifsneider  v.  Lee,  288,  296. 

Reinhart  v.  Soap  Co.,  364,  365,  509. 

Reinhart  v.  Hardesty,  264. 

Reiss  V.  Brady,  472. 

Remington  v.  Cady,  186. 


Remington  Paper  Co.   v.    O'Dough- 

erty,  71. 
Remington  Paper  Co.  v.  Printing  Co., 

71,  407. 
Renfro  v.  IMerryman,  626. 
Renier  v.  Hurlbut,  331. 
Renkert  v.  Elliott,  144,  683 
Rennecker  v.  Davis,  337. 
Repine  v.  McPherson,    229,  244,  422, 

434. 
Repley  v.  Severance,  260. 
Rewe  V.  Heath,  698. 
Reyburn  v.  Brackett,  286. 
Reynell  v.  Sprye,  594 
Reynolds  v.  Bell,  487. 
Reynolds  v,  Damrell,  479. 
Reynolds  v.  De  Geer,  676. 
Reynolds  v.  Horn,  479. 
Reynolds  v.  Jordan,  492,  523. 
Reynolds  v.  McKinney,  273. 
Reynolds  v.  Simpkins,  470. 
Reynolds  v.  Smith,  260,  267. 
Reynolds  v.  Tenant,  501,  505. 
Rhawn  v.  Pearce,  195. 
Rhea  v.  Powell,  214 
Rhine  v.  Blake,  261. 
Rhine  v.  Danville,  etc.,  R.  Co.,  360. 
Rhine  v.  Railroad  Co.,  384 
Rhoads  v.  Woods,  395. 
Rhode  Island  Ex.  Bank  v.  Hawkins, 

357. 
Rhode  Island,  etc.  v.  Keeney,  245,  418. 
Rhodes  v.  McGarry,  257. 
Rhodes  v.  Smith,  518. 
Rice  V.  Dale,  150. 
Rice  V.  Dorrian,  61,  540. 
Rice  V.  Dudley,  369. 
Rice  V.  Dwight  Man.  Co.,  593. 
Rice  V.  Hauptman,  471. 
Rice  V.  McMartin,  605. 
Rice  V.  Morner,  50,  51,  90. 
Rice  V.  Nolan,  502. 
Rice  V.  Pertius,  45,  53. 
Rice  V.  Third  N.  Bank,  320. 
Rice  V.  Tiiornton,  74,  473. 
Rice  V.  Whit^eJ^  644 
Rich  V.  Solari,  183. 
Rich  V.  Sowles,  031. 


Ixxxvi 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Rich  V.  Thornton,  63,  356. 
Richard  v.  Mooney,  4G3. 
Richards  v.  Allen,  265. 
Richards  v.  Bestor,  115,  557. 
Richards  v.  Craig,  520. 
Richards  v.  Daggett,  170,  222,  223. 
Richards  v.  Donaughey,  86. 
Richards  v.  Griggs,  292. 
Richards  v.  Stephenson,  371,  384. 
Richards  v.  Stower,  531. 
Richards  v.  Viccaro,  575. 
Richardson  v.  Adler,  501,  505,  545. 
Richardson  v.  Anderson,  296. 
Richardson  v.  Gurney,  260. 
Richardson  v.  Hall,  170.  221,  558. 
Richardson  v.  Hickman,  654. 
Richardson  v.  Lacey,  641. 
Richardson  v.  Leavitt,  195. 
Richardson  v.  Lester,  258. 
Richardson  v.  White,  864. 
Richardson  v.  Whiting,  259. 
Richmond  v,  Brookings,  245, 
Richmond  v.  Dreyfous,  440. 
Richter  v.  Trask,  651. 
Richter  v.  Wise,  88. 
Rick  V.  Waters,  272, 
Rickel  V.  Strelinger,  94. 
Rickert  v.  Snyder,  698. 
Ricketts  v.  Henderson,  448. 
Riddle  v.  Black,  473. 
Riddle  v.  Etting,  388. 
Riddle  v.  Miller,  257. 
Riddle  v.  Varnum,  197. 
Rider  v.  Sheldon,  404. 
Ridge  V.  Olmstead,  274. 
Ridgeney  v.  Coles,  254,  488. 
Ridgeway  v.  Farr,  228,  229. 
Ridgeway  v.  Smith,  47,  486. 
Ridley  v.  Ridley,  428,  432,  434. 
Ridlon  V.  Cressey,  640. 
Riggin  V.  Hilliard,  312. 
Riggs  V.  Murray,  48. 
Riley  v.  Hirst,  270,  291. 
Riley  v.  Hitzler,  495. 
Riley  v.  Nance,  610. 
Riley  v.  Nichols,  122. 
Riley  v.  Reuick  Milling  Co.,  261. 
Rinchey  v.  Stryker,  170. 


Rindge  v.  Green,  283. 

Rindskoff  v.  Rogers,  559. 

Ring  V.  Vogel  Paint  Co.,  47. 

Ringold  V.  Suiter,  263,  338. 

Riordan  v.  Britton,  206,  234,  249. 

Ripley  v.  Bank,  277,  303. 

Ripley  v.  Gear,  127,  128,  531. 

Ripley  v.  Severance,  304. 

Rippeu  V.  Schoen,  265,  385. 

Rischert  v.  Kunz,  508. 

Risewick  v.  Davis,  28,  29. 

Risley  v.  Brown,  527. 

Risley  v.  Welles,  261.  861. 

Risser  v.  Rathburn,  305. 

Riswick  V.  Lamon,  290. 

Rittenliouse  v.  Harman,  98. 

Ritter  v.  Insurance  Co.,  259,  323. 

Ritter  v.  Scanuell,  237. 

Rivard  v.  Gardner,  251. 

Rives  v.  Welborue,  406,  514. 

Rix  V.  Elliott,  276. 

Rix  V.  Silknitter,  188,  212,  220,  394. 

R.  L.  &  M.  Works  v.  Kelley,  180. 

Roach  V.  Brannon,  55,  128,  690. 

Road  V.  Sammons,  328. 

Robbins  v.  Alley,  29. 

Robbins  v.  Cooper,  184. 

Roberts  v.  Barry,  623. 

Roberts  v.  Burke,  63. 

Roberts  v.  Carpenter,   399,   400,   427, 

433. 
Roberts  v.  Drinkard,  272. 
Roberts  v.  Dunn,    190,  285,  427,  433, 

514,  524. 
Robertson  v.  Baker,  278. 
Robertson  v.  Beall,  290. 
Robertson  v.  Hoge,  228,  241. 
Robertson  v.  Forrest,  12,  620. 
Robertson  v.  Kinkhead,  244 
Robertson  v.  Lemon,  698. 
Robertson  v.  Roberts,  359. 
Robertson  v.  Scales,  257. 
Robeson  v.  Carpenter,  647. 
Robinson  v.  Burtov,  89,  114. 
Robinson  v.  Campbell,  438. 
Robinson  v.  Ensign,  190,  285. 
Robinson  v.  Fitch,  269. 
Robinson  v.  Hall,  277. 


TABLE    OF   CASES. 


Ixxxvii 


Tlie  references  are  to  pages. 


Robinson  v.  Hesser,  80. 
Robinson  v.  Howard.  292. 
Robinson,  Ex  parte,  92,  99,  119,  121, 

122. 
Robson  T.  Hunter,  32,  42, 
Robinson  v.  MansGeld,  170,  188,  189, 

222,  223,  401. 
Robinson  v.  Mitchell,  301. 
Robinson  v.  National  Bank,    3,   433, 

486. 
Robinson  v.  National  Bank  of  New- 

berne,  168. 
Robinson  v.  Swearingen,  501, 
Robinson  v.  Tevis,  276. 
Robinson  v.  Thornton,  610. 
Robinson  v.  Ward,  484. 
Robinson  v.  Williams,  268. 
Robinson  v.  Wilson,  504,  505. 
Robinson  Notion  Co.  v.  Ormsby,  51. 
Roby  V.  Labuzan,  263. 
Roch  V.  R  L  Ins.  Co.,  510. 
Roche  V.  R  I.  Ins.  Ass'n,  333. 
Rochefeller  v.  Hoysradt,  476. 
Rochereau  v.  Guidry,  646. 
Rock  T.  Singmaster,  355. 
Rock  Island  Plow  Co.  v.  Breese,  164. 
Rockwood  V.  Varnum,  410,  546,  554. 
Roddey  v.  Erwin,  94,  191. 
Rodega  v.  Perkerson,  168,  221,  223, 

225,  434. 
Rodgers  v.  Bonner,  237. 
Rodman  v.  Musselman,  308,  316,  817. 
Rodolph  V.  Mayer,  456. 
Rodrigues  v.  Trevino,  371,  536,  559. 
Roe  V.  Holbert,  64. 
Roe  V.  Thomas,  682. 
Roelfson  v.  Hatch,  88,  433,  443. 
Roeller  v.  Ames,  316. 
Rogers  v.  Abbott.  565,  580. 
Rogers  v.  Arnold,  72. 
Rogers  v.  Birdsall,  129. 
Rogers  v.  Bonner,  205,  232,  543. 
Rogers  v.  Burbridge,  141,  470,  622. 
Rogers  v.  Cooper,  113,  115. 
Rogers  v.  Dill,  442. 
Rogers  v.  Ellis,  105. 
Rogers  v.  Fairfield,  213. 
Rogers  v.  Gilmore,  213. 


Rogers  v.  Jenkins,  423. 

Rogers  v.  Nichols,  183. 

Rogers  v.  Odell,  060. 

Rogers  v.  Pitman,  690. 

Rogers  Locomotive  Works  v.  Kelly, 

265. 
Rohan  v,  Latimore,  43. 
Rohrbough  v.  Lepold,  137. 
Rollins  V.  Allison,  498,  500. 
Rollins  V.  Clement,  254. 
Rollo  V.  Andes  Ins.  Co.,  308. 
Romagosa  v.  Nodal,  371,  536. 
Rome  R.  Co.  v.  Richmond,  etc.,  R.  R 

Co.,  636. 
Ronaldson  v.  Hamilton,  105. 
Ron  an  t.  Dewes,  365,  370. 
Ronkendorff  v.  Taylor's  Lessee,  251. 
Rood  V.  Scott,  400,  401. 
Rooker  v.  Daniels,  654. 
Roos  V.  Lewyn,  42,  589. 
Roosevelt  v.  Kellogg,  28. 
Root  V.  Columbus,  etc.,  R  Co.,  394. 
Root  V.  Davis,  269. 
Root  V.  Monroe,  476. 
Root  V.  Railroad  Co.,  210. 
Roquest  v.  Steamer,  363,  384. 
Rose  V.  Himely,  448. 
Rose  V.  Whaley,  479,  623. 
Rosenberg  v,  Claflin  Co.,  116,  460. 
Rosenberg  v.  Moore,  55. 
Rosenbury  v.  Angell,  170. 
Rosenfield  v.  Case,  569,  667. 
Rosenfield  v.  Howard,  52. 
Rosenheim  v.  Fifield,  118. 
Rosenthal  v.  Wahre,  57. 
Rosewater  v.  Clothing  Co.,  556. 
Ross  V.  Allen,  314, 
Ross  v.  Austin,  634 
Ross  V.  Clark,  32,  41,  285,  289,  313. 
Ross  V,  Duval,  438. 
Ross  V,  Edwards,  187. 
Ross  V.  Jenkins,  109, 
Ross  V.  McKinney,  272. 
Ross  T.  Malone,  693. 
Ross  V.  Philbrick,  394. 
Ross  V.  Pitts,  644, 
Ross  V.  Ross,  330. 
Ross  V.  Steen,  90,  98. 


Ixxxviii 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Rossiter  v.  Paper  Co.,  076. 

Roswald  V.  Hobbie.  520,  688. 

Roth  V.  Hotard,  292,  294. 

Rothchild  v.  Moone}-,  105,  471. 

Rothermel  v.  Marr,  170,  175. 

Roundlett  v.  Jordan,  199. 

Roimdstone  v.  Holt,  171,  188,  536. 

RouUiac  V.  Rigby,  148. 

Rourke  v.  Bullens,  197. 

Rouss  T.  Wright,  88,  89. 

Rowan  v.  Lamb,  207,  327. 

Rowe  V.  Kellogg,  468. 

Rowell  V.  Klein,  353. 

Rowell  V.  Powell,  494. 

Rowland  v.  Coyne,  461. 

Rowland  v.  Plummer,  384,  560. 

Rowlett  V.  Lane,  623. 

Rowley  v.  Berrian,  4,   424,   426,   433, 

443,  464,  527,  534,  606. 
Rowley  v.  Jewett,  527. 
Rowley  v.  Kemp,  534. 
Rowley  v.  Rice,  398. 
Roy  V.  Union  Co.,  49,  461. 
Roy  V.  Tim,  372. 
Royer  v.  Fleming,  370. 
Rozells  V.  Rhodes,  267,  507. 
Ruchelman  v.  Skinner,  521. 
Rudd  V.  Payne,  298. 
Rudolph  V.   McDonald,  111,  540,  651. 
Rudolph  V.  McDowell,  483. 
Ruff  V.  Ruff,  650. 
Rugg  V.  Minett,  197. 
Ruhl  V.  Rogers,  79. 
RuUman  v.  Hulse,  446. 
Rumbough  v.  White,  85. 
Rumsey  v.  Nickerson,  179. 
Rundlet  v.  Jordan,  271. 
Runlett  V.  Bell,  395. 
Runnells  v.  Kaylor,  580. 
Runyan  v.  McClellan,  618. 
Runyan  v.  Moi'gan,  73. 
Ruppert  V.  Haug,  82,  90,  125,  465,  649, 

541. 
Ruse  V.  Bromberg,  329. 
Rushtou  V.  Rowe,  633. 
Russ  V.  Butterfiold,  236. 
Russell  V.  Clingman,  272. 
Russell  V.  Con  vers,  301. 


Russell  V.  Deane,  501. 

Russell  V.  Freedmen's  Savings  Bank, 

357. 
Russell  V.  Gregory,  89,  434. 
Russell  V.  Lawton,  547. 
Russell  V.  Lewis,  260. 
Russell  V.  Lowth,  496. 
Russell  V.  Mayor,  394,  403. 
Russell  V.  Men  of  Devon,  312. 
Russell  V.  O'Brien,  197. 
Russell  V.  Tunno,  298. 
Russell  V.  Work,  117. 
Ruthe  V.  Green  Bay  &  Minn.  R  R. 

Co.,  88,  89,  125. 
Rutherford  v.  Fullerton,  369. 
Rutherford  v.  Fulton,  652. 
Ruthven  v.  Beckwith,  39,  487,  682. 
Rutledge  v.  Stribling,  84,  101,  150. 
Rutter  V.  Boyd,  383. 
Ryall  V.  Marx,  689. 
Ryan  v.  Burkham,  353. 
Ryan  v.  Campbell,  214. 
Ryan  v.  Goldf  rank.  515. 
Ryan  v.  Heenan,  614. 
Ryan  v.  Maxey,  614. 
.Ryan  v.  Peacock,  396. 
Ryan  v.  Wessels,  504. 
Ryan  v.  AVessons,  504. 
Ryan  Drug  Co.  v.  Peacock,  614. 
Ryder  v.  Flanders,  254,  428. 
Ryhiner  v.  Ruegger,  470. 
Ryland  v.  Green,  7. 
Ryon  V.  W^yukoop,  276. 

s. 

Sabin  v.  Austin,  165. 
Sabin  v.  Cooper,  277, 
Sackett  v.  McCord,  693. 
Saco  V.  Hopkinton,  160,  479. 
Saddler  v.  Hudson,  440. 
Saddler  v.  Prairie  Lodge,  377,  626. 
Saddlery  v.  Urner,  52. 
Saddlery  Co.  v.  Schoelkopf,  517. 
Saddles vene  v.  Arms,  75. 
Sadler  v.  Tatte,  237. 
Saffaracus  v.  Bennett,  252. 
Saffarans  v.  Terry,  253. 


TABLK    OF    CAPES. 


Ixxxix 


Tlie  references  are  to  pcfjes. 


Safford  v.  National  Bank,  266. 

Sagely  v.  Livermore,  395. 

Sale  V.  French,  607. 

Sailer    v.    Insurance    Co.   of    North 

America,  381. 
Salmon  v.  Mills,  117,  467,  483. 
Salomon  v.  Smith,  487. 
Sam  V.  Hochstadler,  459. 
Sampson  v.  Bryce,  309. 
Sampson  v.  Hyde,  364. 
Sams  V.  Armstrong,  210. 
Samuel  v.  Agnew,  257,  667, 
Samuel  v.  Brite,  134. 
Sanborn  v.  Royce,  183,  659. 
Sanborn  v.  Ward,  509. 
Sandblast  Co.  v.  Parsons,  273. 
Sandburg  v.  Papineau,  646. 
Sandel  v.  George,  24,  29,  36. 
Sanders  v.  Canett,  122. 
Sanders  v.  Hamflton,  76,  590. 
Sanders  v.  Hughes,  128,  688. 
Sanders  v.  Page,  556. 
Sanderson  v.  Edwards,  213,  395,  427. 
Sandheger  v.  Hosey,  106. 
Sands  v.  Lynham,  592,  595. 
San  ford  v.  Bliss,  625. 
Sanford  v.  Boring,  213,  427,  434. 
Sanford  v.  Pond,  240. 
Sanford  v.  Wheeler,  563. 
Sangamon,  etc.,  Co.  v.  Richardson, 

329. 
Sanger  v.  Flow,  569. 
Sanger  v.  Trammell,  206,  239,  544. 
Sangster  v.  Butt,  647. 
Sangster  v.  Commonwealth,  170,  222, 

225. 
Sannes  v.  Ross,  621. 
Sannoner  v.  Jacobson,  61,  99,  117. 
San  Roman  v.  Watson,  143. 
Santo  V.  State,  669. 
Sappington  v.  Oeschli,  495,  578. 
Sargeant  v.  Andrews,  645. 
Sargeant  v.  Hembold,  75. 
Sargent  v.  Carr,  188. 
Sargent  v.  Fuller,  685. 
Sarpy  v.  New  Orleans,  698. 
Sartin  v.  Wier,  519. 
Sauer  v.  Behr,  568. 


Sauer  v.  Nevadaville,    257,   271,  312, 

317. 
Saul  V.  His  Creditors,  195. 
Saulter  v.  Butler,  477. 
Saunders  v.  Bartlett,  619. 
Saunders  v.  Cavett,  16,  475. 
Saunders  v.  Columbus  Life  Ins.  Co., 

10.  206,  207,  227,  228. 
Saunders  v.  McLean,  .549. 
Saunders  v.  Robinson,  500. 
Savage  v.  Aiken,  602. 
Savage  v.  Davis,  501. 
Savery  v.  Browning,  49.5. 
Sawyer  v.  Arnold,  92,  125. 
Sawyer  v.  Curtis,  656. 
Sawyer  v.  Merrill,  225. 
Sawyer  v.  Sawyer,  299. 
Sawyer  v.  Thompson,  282. 
Sayward  v.  Drew,  272,  273. 
Scales  V.  Hotel  Co.,  258. 
Scales  V.  Southern  Hotel,  274 
Scales  V.  Swan,  364. 
Scamahorn  v.  Scott,  356,  357. 
Scanlon  v.  O'Brien,  5,  492,  521, 529. 
Scarborough  v.  Malono,  10,   345,  514, 

517,  656. 
Schackletfs  Appeal,  10. 
SchaeflPer  v.  Marienthal,  396. 
Schafer  v.  Vizena,  366. 
Schall  V.  Bly,  488. 
Schaller  v.  Nan  Warmer,  62. 
Scharff  v.  Chaffe,  67. 
Schatgill  V.  Bolton.  618. 
Scheffer  v.  Boy.  262. 
Scheib  v.  Baldwin,  1.54,  215. 
Schell  V.  Leland,  122. 
Schenck  v.  GritBn,  601. 
Schepler  v.  Garriscan,  188. 
Scherr  v.  Little,  177. 
Scheuler  v.  Simmons,  30.5. 
Schier  v.  Dank  ward  t,  505. 
Schilling  v.  Deane,  73,  540. 
Schindelholz  v.  CuUem,  407,  510. 
Schlater  v.  Broaddus,  492. 
Schlaeter  v.  Raymond,  299,  644. 
Schlatter  v.  Hunt,  488. 
Schliuder  v.  Smith,  351. 
Schlinter  v.  Jacobs,  559,  561. 


xc 


TABLE    OF    CASES. 


The  references  are  to  pages. 


Schmick  v.  Noel,  696. 
Schmlcllapp  v.  Currie,  55. 
Schmicllapp  v.  La  Confiance  Ins.  Co., 

323. 
Schmidt  v,  Browu,  518. 
Schmidt  v.  Bickenbach,  675. 
Schmidt  v.  Colley,  539, 
Schneider  v.  Ferguson,  682,  690. 
Schneider  v.  McFarland,  428. 
Schneider  v.  Roe,  64. 
Schneider  v.  Sanson,  688. 
Schneider  v.  Sears.  394. 
Schneider  v.  Wallingford,  514,  520. 
Schnell  v.  City  of  Chicago,  253,  432, 

443,  445. 
Schofield  V.  Sanders,  268. 
Schoolcraft  v.  Thompson,  585. 
School  District  v.  Taylor,  579. 
School  District,  etc.  v.  Gage,  314. 
Schooler  v.  Alstrom,  6''5. 
Schoolher  v.  Hutchins,  299. 
Schooner  Bolina,  250,  428. 
Schoppenhast  v,  Bollman,  466,  569, 

644. 
Schoregge  v.  Gordon,  140. 
Schrimpf  v.  McArdle,  132,  137. 
Schroeder,  Matter  of,  32,  40. 
Schrugham  v.  Carter,  183. 
Schuberv.  Simmons,  384. 
Schuerman  v.  Foster,  268,  369. 
Schulenberg  v.  Farwell,  69. 
Schuler  v.  Israel,  269,  368,  370. 
Schultz  V.  Insurance  Co.,  62. 
Schuman  v.  Davis,  211. 
Schunk  V.  Moline,  73. 
Schuster  v.  Rader,  150. 
Schuyler  v.  Sylvester,  513,  695. 
Schwab  V.  Mabley,  460. 
Schwabacher  v.  Kane.  195. 
Schwartz  v.  Claflin,  570,  622. 
Schwartz  v.  Cowell,  207. 
Schwartz  v.  Davis,  687. 
Schwein  v.  Sims,  519. 
Schwinger  v.  Hickock,  421,  592. 
Scofield  V.  Bell,  188. 
Scofield  V.  Bradlee,  288,  412. 
Scoonmaker  v.  Spencer,  119. 
Scorpion  S.  M.  Co.  v.  Marsano,  253. 


S.  C.  Herbst  Imp.  Co.  v.  Burnham, 
460. 

S.  C.  R.  R.  Co.  V.  McDonald,  24 

S.  C.  R.  R.  Co.  V.  People's  Savings  In- 
stitution, 336. 

Scott  V.  Brown,  180. 

Scott  V.  Davis,  213,  427,  433. 

Scott  V.  Doneghy,  62,  70. 

Scott  V.  Hawkins,  377. 

Scott  V.  Macy,  148. 

Scott  V.  Manchester  Printworks,  205. 

Scott  V.  McMillen,  78. 

Scott  V.  Moll,  685. 

Scott  V.  Morgan,  43. 

Scott  V.  Ray,  364. 

Scott  V.  Shearman,  250,  428. 

Scramragel  v.  Whitehurst,  197. 

Screws  v.  Watson,  173,  178. 

Scrivener  v.  Dietz,  117. 

Scruggs  V.  Blair,  30. 

Scrugham  v.  Caster,  618. 

Scurlock  V.  Gulf,  346. 

Seaman  v.  Hicks,  595. 

Seamon  v.  Bank,  373. 

Searcy  v.  Platte  County,  475. 

Searing  v.  Benton.  344. 

S ear m ell  v.  Rice,  586. 

Sears  v.  Gearn,  186. 

Sears  v.  Hanks,  497. 

Sears  v.  Thompson,  390. 

Seattle  Crockery  Co.  v.  Haley,  682. 

Seaver  v.  Fitzgerald,  60. 

Seaving  v.  Brinkerhoff,  48. 

Seawelt  v.  Bank,  165. 

Seay  v.  Greenwood,  696. 

Sebor  v.  Armstrong,  364. 

Seckendorf  v.  Ketch  um,  52. 

Secor  V.  Witter,  280,  281,  392. 

Security  Loan  Ass'n  v.  Weems,  382. 

Seekins  v.  Goodale,  169. 

Seeley  v.  Brown,  114,  481. 

Seeley  v.  Missouri,  etc.,  R.  Co.,  70,  466. 

Seeligson  v.  Rigmaiden,  159. 

Seely  v.  Board  of  Education,  314 

Seers  v.  Blakesly,  479. 

Segog  V.  Engle,  356,  654 

Seibert  v.  Switzer,  68,  69,  619. 

Seibs  V.  Englehart,  273. 


TABLE    OF   CASES. 


XCl 


Tlie  references  are  to  pages. 


Seipo's  Estate,  In  re,  2G9. 

Self  V.  Kirkhmd,  373. 

Selheimer  v.  Elder,  334. 

Seligson  v.  Collins,  501. 

Sellick  V.  Truesdall,  93. 

Selma,  etc.,  R.  Co.  v.  Tyson,  284. 

Selman  v.  Orr,  353,  355. 

Selz  V.  Atkinson  Bank,  636. 

Selz  V.  Beklen,  486. 

Senimes  v.  Patterson,  346. 

Semmes  v.  United  States,  588. 

Senecal  v.  Smith,  128. 

Senior  v.  Brojjan,  637. 

Sercomb  v.  Catlin,  407. 

Sessions  v.  Stevens,  647. 

Settlemier  t.  Sullivan,  603. 

Seville  v.  Wagner,  485. 

Sevvall  V.  Mattoon,  395. 

Seward  v.  Heflin,  373.  647,  65a 

Sewell  V.  Savage,  11,  553. 

Sexey  v.  Adkinson,  170. 

Sexton  V.  Amos,  363,  371. 

Sexton  V.  Rhames,  258,  364. 

Seym  an  e  v.  Gresham,  218. 

Seymour  v.  Kramer,  261. 

Seymour  v.  Newton,  188. 

Seymour  v.  School  District,  314. 

Seymour  v.  Seymour,  385. 

Shaddock  v.  Marsh,  111,  484,  485. 

Shahan  v.  Tall  man,  607. 

Shafer  Iron  Co.  v.  Circuit  Judge,  360. 

Shafifer  v.  Mason,  75. 

Shaffer  v.  Sand  wall,  62,  70. 

Shakmau  v.  Schleuter,  306. 

Shannon  v.  Blum,  180,  259. 

Sharkey  v.  Williams,  432,  483. 

Sharp  V.  Baird,  207.  242. 

Sharp  V.  Clark,  287. 

Sharpe  v.  Hunter,  677. 

Sharpe  v.  ]\Iorgan,  522. 

Sharpless  v.  Zeigler,  5,  94. 

Sharts  v.  Await,  569. 

Shattuck  v.  Smith,  298. 

Shaughnessy  v.  Fogg,  361. 

Shaughnessy  v.  Lininger,   etc.,  Co., 

180. 
Shaver  v.  White,  618. 
Shaw  V.  Bunker,  363,  366. 


Shaw  V.  Holmes,  174. 

Shaw  V.  Laughton,  394 

Shaw  V.  Lawrence,  148. 

Shaw  V.  O'Brion,  401. 

Shaw  V.  Beckett,  373. 

Shea  V.  Robinson,  548. 

Shealy  v.  Toole,  397,  643. 

Shearer  v.  Anderson,  15,  253. 

Shearer  v.  Handy,  364 

Shedd  V.  McConnell,  465, 

Sheedy  v.  Second  National  Bank,  16, 

275.  276,  368,  560. 
Sheehan  v.  Marston  &  Trustee,  391. 
Sheets  v.  Culver,  278. 
Sheetz  v.  Hobensack,  263. 
Sheffield  v.  Barber,  277. 
Sheffield  v.  Gay,  95. 
Sheirburn  v.  Cordova,  438. 
Shelby  v.  Bacon,  303. 
Sheldon  v.  Blanvelt,  75. 
Sheldon  v.  Hinton,  384,  385. 
Sheldon  v.  Kivett,  117. 
Sheldon  v.  Litchfield  County,  813. 
Sheldon  v.  Newton,  441. 
Sheldon  v.  Simonds,  369. 
Sheldon  v.  Stewart,  488. 
Sheldon  v.  Wright,  250,  253,  254,  428. 
Shellabarger  v.  Moltin,  50. 
Shellhamer  v.  Jones,  189. 
Shelly  V.  Smith,  508. 
Shelvin  v.  Whelen,  144 
Shepard  v.  Shepard,  563. 
Shepherd  v.  Bridenstine,  260,  294 
Shepherd  v.  Hall.  396. 
Shepherd  v.  Murrill,  502. 
Sheppard  v.  Collins,  128,  144,  515. 
Sheppard  v.  County,  316. 
Sheppard  v.  Powers,  347. 
Sherill  v.  Beach,  40,  46,  53,  114,  115. 
Sherman  v.  Davis,  93. 
Sherman  v.  Fitch,  577. 
Shermers  Appeal,  7, 
Sherrible  v,  ChaBfee,  499. 
Sherrod  v.  Davis,  401. 
Sherry  v.  Dean,  428. 
Sherry  v.  Schuyler,  170. 
Sherwood  v.  Reade,  85. 
j  Shetler  v.  Thomas,  569,  644,  654 


XCll 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Shiel  V.  Patrick,  77. 

Shield  V.  Dothard,  115. 

Shinn  v.  Holmes,  7. 

Shipman  v.  Woodbury,  27,  34,  54. 

Shipp  V.  Davis,  105. 

Shirley  v.  Byrnes,  4,  5,  43,  436,  522. 

Shirley  v.  Owners,  16. 

Shirley's  Adm'r  v.  Jones,  594,  595. 

Shivers  v.  Wilson,  360. 

Shockley  v.  Bullock,  86,  121. 

Sliockley  v.  Davis,  135,  478. 

Shoe  Co.  V.  Harris,  688. 

Shoe  Co.  V.  Ladd,  556. 

Shoe  &  Leather  Bank  v.  Mechanics' 

Bank,  468. 
Shoreman  v.  Eakin,  496, 
Shorten  v.  Drake,  616. 
Shove  v.  Dow,  545,  546,  548. 
Shove  V.  Farvvell,  52. 
Showman  v.  Lee,  568. 
Shrewsbury  v.  Pearson,  484. 
Sh river  v.  Harbaugb,  175. 
Sh  river's  Lessee  v.  Lynn,  441,  442, 

448,  450. 
Shroyer  v.  Nickell,  592. 
Shroyer  v.  Richmond,  441. 
Shufelt  V.  Cramer,  304,  638. 
Shuff  V.  Morgan,  221. 
Shugart  v.  Orr,  36,  40. 
Shuler  v.  Bryson,  279. 
Slniltz  v.  Morrison,  696. 
Shumway  v.  Putter,  197,  285. 
Shuster  v.  Finan,  461. 
Shuttlesworth  v.  Noyes,  203. 
Sibley  v.  Brown,  222. 
Sibley  v.  Fernie,  186. 
Sibley  v.  Leffiugwell,  268,  563. 
Sibley  v.  Storey,  399,  401. 
Sibley  v.  Waffle,  254,  428. 
Sick  man  v.  Abernethy,  257,  305. 
Sick  man  v.  Lapsley,  634. 
Sievers  v.  Wheel,  615. 
Sievers  v.  Wood  burn,  etc.,  373. 
Sigourney  v.  Eton,  554. 
Sigourney  v.  Larned,  578,  610. 
Silsby  V.  Aldridge,  209. 
Silver  Bow,  etc.,  Co.  v.  Lowry,  230. 
Silverwood  v.  Bellar,  265. 


Sime's  Estate,  293. 

Simmons  v.  Austin,  267. 

Simmons  v.  Mo.  Pac.  R.  Co.,  252,  376. 

Simmons  v.  Woods,  391,  469. 

Simon  v.  Ash,  268,  386. 

Simon  v.  Association  ,45. 

Simon  v.  Stetter,  83, 129. 

Simonds  v.  Harris,  289. 

Simonds  v.  Pearce,  171,  555. 

Simons  v.  Jacobs,  32,  41,  483. 

Sinipkins  v.  Malatt,  98. 

Simpson  v.  Bibber,  299. 

Simpson  v.  Burch,  59,  160. 

Simpson  v.  Haight,  94, 

Simpson  v.  Harry,  259. 

Simpson  v.  Holt,  94. 

Simpson  v.  Knight,  138, 

Simpson  v.  McCarthy,  80,  87,  90,  101. 

Simpson  v.  Reynolds,  329. 

Sims  v.  Eslava,  512. 

Sims  V.  Goettle,  540. 

Sims  V.  Jacobson,  467. 

Sinclair  v.  Tarbox,  395. 

Singer  v,  Lidwinosky,  43. 

Singer  v.  Townsend,  377, 

Singer  Manuf.  Co.  v.  Fleming,  511. 

Singer  Manuf.  Co.  v.  Mason,  490. 

Singleton  v,  Wofford,  83. 

Sitzman  v.  Pacquette,  354,  438. 

Skelly  v.  Westminster  School  District, 

314. 
Skill  V.  Stuart,  86,  92,  93,  134. 
Skillman  v.  Bethany,  188, 
Skinner  v.  Stuart,  396. 
Skinnion  v.  Kelley,  119. 
Skipper  v.  Reeves,  577,  687, 
Skoppenhast  v.  Boll  man,  654. 
Skowhegan  Bank  v.  Farrar,  57,  199. 
Slark  V.  Broom,  473. 
Slatter  v.  Tiernan,  634. 
Slatton  V.  Johnson,  33. 
Slaughter  v.  Bevans,  120. 
Sledge  V.  Lee,  678. 
Sledge  V.  McLaren,  138,  693. 
Sleet  V,  Williams,  109,  125. 
Sloan  V.  Bangs,  54. 
Sloan  V,  Forse,  252. 
Sloan  V,  Langert,  136. 


TABLE    OF    CASES. 


XCIU 


Tlie  references  are  t''-  vages. 


Sloan  V.  IMcCracken,  676,  691,  692. 
Sloan  V.  Mitchell,  122. 
Slocomb  V.  Robert.  516. 
Slosson  V.  Ferguson,  522. 
Small  V.  Hutchins,  399. 
Smalley  v.  Miller.  256,  270. 
Smart  v.  Batchelder,  197,  395. 


Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 

Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 
Sm 


ley  V.  Samson,  441. 

th  V.  Acker,  50. 

th  T.  Ainscow,  654. 

th  V.  Arnold,  41. 

th  V.  Baker,  103. 

th  V.  Bank,  330. 

th  V.  B.  C.  &  M.  Ry.  Co.,  234. 

th  V.  Barclay,  374,  556. 

th  V.  Barker,  643. 

th  V.  Bean,  580. 

th  V.  Boyer,  42,  50. 

th  V.  Blatchford,  653. 

th  V.  Bradstreet,  10,  505. 

th  V.  Bruner,  381. 

th  V.  Gaboon,  272. 

th  V.  Canfield,  275,  389,  582. 

th  V.  Chadwick,  497,  499,  501,  505. 

th  V.  Chapman,  271,  377. 

th  V.  Chicago,  etc.,  R.  R.  Co.,  363, 

507. 

th  V.  Chilton,  354. 

th  V.  Church,  395. 

th  V.  Cicotte,  175. 

th  V.  Clarke,  371. 

th  V.  Clinton  Bridge  Co.,  12,  543. 

th  V.  Conrad,  345,  347. 

th  V.  Craft,  49. 

th  V.  Crooker,  516. 

th  V.  Cunningham,  211. 

th  V.  Curtiss,  238. 

th  V.  Cutchen,  448,  451. 

th  V.  Davis,  88,  121,  540. 

th  V.  Derse,  466,  468. 

th  V.  Dickson,  339,  392,  506. 

th  V.  Dixon,  648. 

th  V.  Downey,  329,  330. 

th  V.  Eakin,  128. 

th  V.  Easton,  16,  47,  433,  485. 

th  V.  Eaton,  332. 

tli  V.  Elliott,  466. 

th  V.  Engle,  441. 


Smith  V.  Fargo,  515,  523. 

Smith  V.  Finlen,  289,  312. 

Smith  V.  Flanders,  634. 

Smith  V.  Foster,  106,  580. 

Smith  V.  German  Bank,  634 

Smith  V.  Gottinger,  540,  543. 

Smith  V,  Gown,  355. 

Smith  V.  Griffin,  611. 

Smith  T.  Hackley,  162,  479. 

Smith  V.  Hill,  345. 

Smith  V.  Holland,  272. 

Smith  V.  Ihling,  162. 

Smith  V.  Johnston,  507,  686. 

Smith  V.  Kaufman,  659. 

Smith  V.  Kennebec,  etc.,   R.  Co.,  199. 

Smith  Y.  Leavitts,  240. 

Smith  V.  Lind,  543. 

Smith  V.  Luce,  88,  92,  99,  121. 

Smith  V.  McCutchen,  360,  422,  432. 

Smith  V.  Milk  Co.,  75. 

Smith  V.  Moore,  16. 

Smith  V,  Mulhern,  447. 

Smith  Y.  Orser,  213,  245. 

Smith  Y.  Osgood,  174,  176. 

Smith  Y.  Pearce,  478. 

Smith  Y.  Peox^le's  Bank,  13. 

Smith  Y.  Pickett,  268. 

Smith  V.  Posey,  260. 

Smith  V.  Railroad,  624. 

Smith  V.  Railroad  Co.,  453. 

Smith  Y.  Reese   River  S.  &  M.  Co., 

594. 
Smith  V.  Rice,  442. 
Smith  V.  Richards,  598. 
Smith  V.  Robinson,  397. 
Smith  V.  Sanborn,  222. 
Smith  V.  Scott,  611,624. 
Smith  V.  Sims,  557. 
Smith  v.  Smith,  72,  566. 
Smith  v.  Sprague,  698. 
Smith  V.  State,  309. 
Smith  V.  Stearns,  372. 
Smith  V.  Steele,  496. 
Smith  V.  Sterritt,  302. 
Smith  v.  Story.   12,   27,    33,    34,  128, 

369,  675,  677,  691. 
Smith  Y.  Victoria,  101, 
Smith  V.  Wells,  592,  594. 


xciv 


TABLE    OF   CASES. 


The  references  are  to  pages. 


Smith  V.  Woolsey,  316. 

Smith  V,  Yargo,  151. 

Smith's  Appeal,  294. 

Smith's  Case.  184. 

Smith,  Matter  of,  184. 

Smith  &  Co.  V.  Zuchee,  567. 

Smokey  v.  Peters,  178,  186. 

Smoot  V.  Eslava,  653. 

Smoot  V,  Hart,  317. 

Smoot  V.  State.  273. 

Smyth  V,  Anderson,  393. 

Snell  V.  Insm-ance  Co.,  594. 

Snelliug  v.  Bryce,  130. 

Snook  V.  Snetzer,  508,  509. 

Snow  V.  Sheldon,  187. 

Snyder  v.  Brune,  500. 

Societe,  etc.  v.  Miiliken,  106. 

Solinsky  v.  Bank,  53,  218. 

Solomon  v.  Smith,  193. 

Somers  v.  Losey,  200. 

Somerville  v.  Somervllle,  28. 

Somes  y.  Brewer,  579. 

Sommer  v.  Gilmore,  383. 

Sorrels  v.  Self,  496. 

Souberain  v.  Renaux,  90. 

Soule  V.  Chase,  250,  252. 

Soule  V.  Ice  Co.,  373. 

Southard  v.  Benner,  363. 

South  Bend  Bank  v.  Gandy,  266, 

South  Bend  Iron  Works  v.  Cottrell, 

259. 
South  Carolina  R.  Co.  v.  McDonald, 

318. 
Southerland  v.  Burrill,  363. 
Southern  Bank  v.  McDonald,  546. 
Southern  Md.  R.  Co.  v.  Moyer,  29S. 
Spain  V.  Hamilton's  Adm'r,  302. 
Spalding  v.  Imlay,  312. 
Sparhawk  v.  Cloon,  265. 
Sparkman  v.  Swift,  178. 
Sparks  v.  Zebley,  54. 
Sparp  V.  Baird,  221. 
Spaulding  v.  Kennedy,  352. 
Spaulding  v.  Simms,  35,  36,  470. 
Spaulding  v.  Wallet,  12,  675. 
Speak  V.  Kinsey,  277. 
Spear  v.  Hubbard,  467. 
Spear  v.  King,  140,  477. 


Spear  v.  Rood,  267. 

Spears  v.  Chapman,  263,  272,  385. 

Spears  v.  Robinson,  556. 

Speed  V.  Brown,  317. 

Speelman  v.  Chaffee,  154,  514,  520. 

Speise  v.  McCoy,  273. 

Spelmau  v.  Aldrich,  507. 

Spencer  v.  Blaisdell,  199,  288,  495. 

Spencer  v.  Bloom,  94. 

Spencer  v.  Deagle,  52. 

Spencer  v.  Moran,  385. 

Spencer  v.  Rogers  Locomotive  Works, 

470. 
Spencer  v.  School  District,  313,  314. 
Spengler  v.  Davy,  691,  692. 
Spengler  v.  Kaufman,  509. 
Spengler  v.  O'Shea,  234. 
Sperry  v.  Ethridge,  532. 
Spettigue  v.  Hutton,  143,  462. 
Speyer  v.  Ihmels,  540,  543. 
Spicer  v.  Spicer,  643. 
Spiegelberg  v.  Sullivan,  16,  150,  245, 

433. 
Spiers  v.  Halstead,  122. 
Spillman  v.  Williams,  252,  423. 
Spitz  V.  Mohr,  159. 
Spitz  V.  Tripp,  374. 
Splahn  V.  Gillespie,  353. 
Spooner  v.  Rowland,  649. 
Sprague  v.  Clark,  353. 
Sprague  v.  Parsons,  686,  693. 
Sprague  v.  Steamboat  Nav.  Co.,  328. 
Spring  V.  Ayer,  388. 
Spring  V.  Insurance  Co.,  55. 
Springer  v.  Kleinsorge,  557. 
Sprinz  v.  Vaunuchi,  363. 
Sproul  V.  McCoy,  511. 
Sproule  V.  McNulty,  300. 
Spruill  V.  Trader,  653. 
Squair  v.  Shea,  284. 
Squire  v.  Mudgett,  494. 
St.  Amant  v.  Beixcedon,  119,  484. 
St.  Clair  v.  Cox,  3,  152,  332. 
St.  George  v.  O'Connell,  212. 
St.  Joseph  Township  v.  Rogers,  437. 
St.  Louis  V.  Regeufuss,  307. 
St.  Louis,  etc.  v,  Cronin.  77,  641. 
St.  Louis,  etc.,  R.  Co.  v.  Lamed,  324 


TABLE    OF    CASES. 


XC^ 


27*6  references  are  to  pages. 


St  Louis,  etc.,  R  Co.  v.  Richter,  263, 

640. 
St  Louis  Dairy  Co.  v.  Sauer,  177. 
St  Louis  P.  Ins.  Co.  v.  Cohen,  24, 

377. 
St  Louis  Tj'pe  Foundry  v.  Printing 

Co.,  57. 
St  Louis  Wire  Mills  v.  Lindheim,  43. 
Staats  V.  Bristow,  182. 
Staats  V.  Executors  of  Ten  Eyck,  698. 
Stack  V.  Bare,  509. 
Stackpole  v.  Newman,  363. 
Stacks  V.  Curd,  212. 
Stacy  V.  Stichton,  105,  475. 
Stadder  v,  Jacobs,  692. 
Stadler  v.  Moors,  304,  638. 
Stadler  v.  Parmlee,  99. 
Stafford  v.  Elliott  503. 
Staggers  v.  Washington,  115,  117. 
Stahl  V.  Webster,  635. 
Staley,  etc.  v.  Wallace,  62. 
Stamford  Bank  v.  Ferris,  314 
Stamper  v.  Hibbs,  48. 
Stancel  v.  Purycar,  3G2. 
Standard  Wagon  Co,  v.  Lowry,  627. 
Stanhope  v.  SwafFord,  57. 
Stauiels  v.  Raymond,  50,  410,  494 
Stanley  v.  Arnow,  456,  457. 
Stanley  v.  Ogden,  75. 
Stanley  v.  Perry,  498, 
Stanley  v.  Stanley,  3. 
Stansell  v,  Fleming,  183,  536,  573, 
Stanton  v,  Boschert  200,  397. 
Stanton  v.  Heai'd,  615. 
Staphouse  v.  County  of  New  Haven, 

312. 
Staple  V.  Bird,  199. 
Staples  V,  Fairchild,  86,  119. 
Staples  V,  Staples,  287,  291. 
Stapleton  v.  Orr.  532,  605. 
Starbuck  v.  Murray,  449. 
Stark  V.  Brown,  428. 
Starke  v.  Marshall,  87. 
Starke  v.  Scott  37. 
Starks  v.  Curd,  619. 
Starr  v.  Lyon,  137,  148,  477,  678. 
Starr  v.  Mayer,  63, 
Starr  v.  Moore,  395, 


Starry  v,  Korab.  383, 

State  V,  Baldwin.  395,  65a 

State  V.  Barker,  210, 

State  V.  Beldsmeyer.  136,  675,  685. 

State  V.  Berniudez,  506. 

State  V.  Berry,  144  444 

State  V.  Bick,  637. 

State  V.  Bonham,  190. 

State  V.  Boothe,  285. 

State  V.  Boston,  etc.,  R.  R  Co.,  284 

State  V.  Bowen,  639,  661. 

State  V.  Brownlee,  300. 

State  V,  Carson,  499. 

State  V.  Chamberlin,  129,  132. 

State  V,  Clay  Co.,  177, 

State  V,  Conover,  661. 

State  V,  Cornelius.  16,  213,  427,  434 

State  V.  Court  of  Mason  Co.,  83. 

State  V.  Court  of  Pierce  Co.,  83. 

State  V.  Crowder,  683. 

State  V.  Depsedor,  556. 

State  V.  Dittmar,  509. 

State  V,  Duncan,  346,  352,  549. 

State  V,  Eberly,  312. 

State  V,  Eddy,  201,  249,  612. 

State  V.  Ellis,  190. 

State  V,  Ely,  444 

State  V.  Fitzpatrick,  661, 

State  V.  Fontinberry,  138, 

State  V,  Foster,  169, 

State  V.  Gachenheimer,  444 

State  V.  Gage,  691. 

State  V,  Gaillard,  594 

State  V.  Hamilton,  161, 

State  V.  Harrington,   498,    543,    544 

546,  656, 
State  V,  Heckert  136, 
State  V.  Immer,  637, 
State  V,  Jennings,  655, 661. 
State  V.  Johnson,  307, 
State  V.  Judge  of  Court,  414 
State  V.  Kevin,  699, 
State  V.  Krumpus,  502, 
State  V.  Kurtzeborn,  504. 
State  V,  Long,  661, 
State  V,  ]\ranly,  173,  499,  501,  505,  609, 

611. 
State  V,  McBride,  77, 


XCVl 


TABLE    OF    CASES. 


The  references  are  to  x>ages. 


State  V.  McGIothlin,  527. 

State  V.  McHale.  697. 

State  V.  McKeon,  683,  695. 

State  V.  Metzger,  442. 

State  V,  Miller,  611. 

State  V.  Moore,  170,  225. 

State  V.  Morris,  39,  95. 

State  V.  Netherton,  265. 

State  V.  Pace,  62. 

State  V.  Penner,  242. 

State  V.  Penny,  7. 

State  V.  Quick,  485. 

State  V.  Ricliardson,  414. 

State  V.  Sandford,  495,  502. 

State  V.  Schilling.  638. 

State  V.  Shobe,  699. 

State  V.  Spikes,  556. 

State  V.  Springer,  681. 

State  V.  Superior  Court,  446. 

State  V.  Sutterfield,  437. 

State  V.  Thomas,  684,  697. 

State  V.  Thompson,  132,  177. 

State  V.  Tiedeman,  314 

State  V.  Wheeler,  669, 

State  V.  Williams,  62,  676. 

State  V.  Wilson,  502. 

State  V.  Younts,  128. 

State  ex  rel.  v.  Court,  192,  574. 

State  ex  rel.   Kahoon  v.  Krurapus, 

499. 
State  of  Lousiana  v.  Mayor,  73. 
State  of  Rhode  Island  v.  State  of 

Mass.,  441. 
State  Bank  v.  Hilton,  678. 
State  Bank  v.  Martin,  217. 
State  Bank  of  Fenton  v.  Whittle,  488. 
State  N.  Bank  v.  Boatner,  348,  360. 
State  Sav.  Bank  v.  Hosmer,  263,  345, 

347. 
Statt  T.  Evans,  76. 
Statts  V.  Bristow,  245. 
Staunton  v.  Holmes,  285,  312. 
Steadham  v.  Parrish,  71,  77. 
Steamboat  Clarion  v.  Moran,  158. 
Steamboat  Farmer  v.  McCraw,  470. 
Steamboat  Napoleon  v.  Etter,  135. 
Steamboat  Orleans,  The,  v.  Phoebus, 

669. 


Steamboat  Raritan  v.  Smith,  668. 

Stearns  v.  Dean.  188,  196. 

Stebbins  v.  Anthony,  71. 

Stebbins  v.  Fish,  377. 

Stedmau  v.  Vickery,  260. 

Steel  V.  Goodwyn,  472. 

Steel  V.  Lyford,  494. 

Steel  V.  Raphael,  96,  473. 

Steel  V.  Smith,  424. 

Steele  v.  Dodd,  45. 

Steele  v.  Leouori,  504. 

Steele  v.  Thompson,  637. 

Steele  v.  Tutwiler,  115. 

Steen  v.  Harris,  189. 

Steen  v.  Ross,  137,  682. 

Steer  v.  Hoagland,  78. 

Steere  v.  Vanderberg,  252,  418. 

Steers  v.  Morgan,  621. 

Steffens  v.  Wanbosker,  544,  553. 

Steib  V.  Whitehead,  265. 

Stein  V.  Bennett,  7,  504. 

Stein  V.  Munch,  50. 

Stein  V.  Seaton,  275. 

Steiner  v.  Central  R.  R.  Co.,  320. 

Steinhart  v.  Deuster,  50. 

Steinhart  v,  Leman,  136, 676. 

Steinwender  v.  Creath,  51. 

Stephen  v.  Thayer,  12. 

Stephens  v.  Adams,  189. 

Stephens  v.  Allmen,  143. 

Stephens  v.  Greene  County  Iron  Co., 

492. 
Stephens  v.  Oppenheimer,  575. 
Stephenson  v.  Sloan,  45. 
Stephenson  v.  Walden,  188. 
Sterling  City  Mining  Co.  v.  Cock,  678. 
Sterns  Paper  Co.  v.  Johnson,  473. 
Sterrett  v.  Howarth,  235. 
Sterrett  v.  Miles,  267. 
Stetson  V.  Cleneay,  279. 
Steuart  v.  West,  273. 
Steuben  Co.  Bank  v.  Alberger,  82, 98, 

465,  469,  484,  541. 
Stevens  v.  Able,  12,  672. 
Stevens  v.  Bell,  265. 
Stevens  v.  Briggs,  180. 
Stevens  v.  Brown,  511. 
Stevens  v.  Carson,  502. 


TABLE    OF   CASES. 


XCVU 


TJie  references  are  to  pages. 


Stevens  v.  Dillman,  281. 
Stevens  v.  Gwathmey,  381. 
Stevens  v.  Kirk,  261. 
Stevens  v.  Lunt,  373. 
Stevens  v.  Middleton,  94. 
Stevens  v.  Perry,  201,  276. 
Stevens  v.  Phoenix  Ins.  Co.,  331. 
Stevens  v.  Pugh,  298. 
Stevens  v.  Stevens,  303. 
Stevens  v.  Wolf,  174. 
Stevens  v.  Wrisley,  567. 
Stevenson  v.  Duulap,  450. 
Stevenson  v.  Jackson,  660. 
Stevenson  v.  McLean,  169. 
Stevenson  v.  Palmer,   397,    514,   519, 

520, 670. 
Stevenson  v.  Prather,  12. 
Stevenson  v.  Robbins,  129,  137,  670, 

678,  689. 
Stevens  Point  Bank  v.  Rosenfield,  72. 
Stewart  v.  Anderson,  64 
Stewart  v.  Board,  etc.,  250,  428. 
Stewart  v.  Cabanne.  51,  106,  109. 
Stewart  v.  Clark,  80. 
Stewart  v.  Cole,  47. 
Stewart  v.  Dobbs,  528. 
Stewart  v.  Heidenbeimer,  111. 
Stewart  v.  Katz.  97,  100,  138. 
Stewart  v.  Marquis  of  Bute,  199. 
Stewart  v.  Martin,  394. 
Stewart  v.  Mitchell,  85. 
Stewart  v.  Smith,  5G2. 
Stewart  v.  Sonneborn,  676. 
Stewart  v.  Sticher,  495. 


ckley  V.  Little,  624. 
ckney  v.  Davis,  221. 
enle  v.  Bell,  60. 
flf  V.  Fisher,  56,  70. 
flf  V.  Stevens,  70. 
les  V.  Davis,  12,  395,  412. 
les  V.  Hill,  178. 
11  V.  Focke,  237. 
lie  V.  Layton,  645. 
llings  V.  Young,  275. 
llman  v.  Isham,  286,  312. 
Iwell  V.  Grocery  Co.,  194. 
mson  V.  Maiden,  645. 
mson  V.  Ward,  899. 
G 


Stinson  v.  Caswell,  259,  274. 

Stinson  v.  Clark,  197. 

Stinton  v.  Steamboat  Roberts,  669, 

Stix  V.  Keith,  577,  695. 

Stockberger  v.  Lindsey,  636. 

Stockett  V.  Nicholson.  442. 

Stockley  v.  Wadman,  11,  171. 

Stockton  V.  Bishop,  66. 

Stockton  V.  Douney,  6,  213,  227. 

Stockton  V.  Hall.  372. 

Stock  well  V.  McCracken,  645. 

Stodart  v.  McMahan,  227. 

Stoddart  v.  3Ic:\Iahon.  207,  228,  229. 

Stoiber  v.  Thudium,  150. 

Stokes  V.  Potter,  107. 

Stoller  V.  Coates,  194. 

Stonach  v.  Glessner,  586. 

Stone  V.  Boone,  473,  485. 

Stone  V.  Darrell,  504. 

Stone  V.  Dean.  199,  278. 

Stone  V.  Hawkins,  238. 

Stone  V.  Insurance  Co..  321. 

Stone  V.  Magruder,  360. 

Stone  V.  Miller,  238. 

Stone  V.  Myers,  3. 

Stone  V.  Swift,  692. 

Storm  V.  Adams,  286. 

Storm  V.  Cotzliausen,  388. 

Story  V.  Elliot.  162. 

Story  V.  Kemp,  374. 

Stouflfer  V.  Niple,  38. 

Stoughton  V.  Pasco,  563. 

Stout  V.  Folger,  83. 

Stout  V.  Leonard,  25,  28. 

Stout  V.  Stoppel,  190. 

Stout  V.  Woods,  648. 

Stoutenburgh   v.  Vandenburgh,  186. 

Stowe  V.  Buttrick,  400,  402. 

Stowe  V.  Meserve,  498. 

Stowe  V.  Phinney,  323. 

Strasburger  v.  Bachrach,  57. 

Stratton  v.  Brigham,  27,  34,  54 

Stratton  v.  Ham,  293. 

Straub  v.  Wooten,  680. 

Straus  V.  Chicago,  etc.,  Co.,  324 

Straus  V.  Chicago  Glycerine  Co.,  421. 

Straus  V.  Wessel,  198. 

Strauss  v.  Abraham,  57,  104,  485. 


XCVIU 


TABLE   OF   CASES. 


The  references  are  to  j^ages. 


Strauss  v.  Cooch,   483. 

Strauss  v.  Dundon,  698. 

Strauss  v.  Railroad  Co.,  272. 

Straw  V.  Jeuks,  191. 

Street  v.  Smith,  335. 

Streissguth  v.  Reigelman,  91,  640. 

Strieker  v.  Kelley,  445. 

Strickland  v.  Martin,  218. 

Stringer  v.  Dean,  81,  101,  471. 

Striugfield  v.  Fields,  47. 

Striplin  v.  Cooper,  545. 

Strode  v.  Patton,  592,  594. 

Stroner  v.  Prokop.  239. 

Strong  V.  Catlins,  165. 

Strong  V.  Hollon,  377,  387,  635,  636. 

Strong  V.  Lake  Weir,  etc.,  Ass'n,  134. 

Strong's  Ex'rs  v.  Bass,  388. 

Strouse  v.  Becker,  501. 

Strout  V.  Bradbury,  190,  286,  395. 

Struber  v.  Klein,  384. 

Struthers  v.  McDowell,  113. 

Stiiart  V.  Lacoume,  519,  520. 

Stubblefield  v.  Hagerty,  303. 

Stuckey  v.  McKibbon,  307,  495. 

Studebaker,  etc.,  Co.  v.  Santo  Tomas 

Coal  Co.,  392. 
Stuntz  V.  Tanner,  246. 
Sturges  V.  Kendall,  624. 
Sturgis  V.  Knapp,  130. 
Sturtevant  v.  Ballard,  43. 
Sturtevant  v.  Robinson,  649. 
Sublett  V.  Wood,  17,  485. 
Succession  of  Durand,  31. 
Sueterlee  v.  Sir,  91. 
Suksdorflf  v.  Bigham,  64. 
Sullivan  v.  Blackwell,  442. 
Sullivan  v.  Cleveland,  544. 
Sullivan  v.  Fugate,  88. 
Sullivan  v.  Hendrickson,  504. 
Sullivan  v.  Lamb,  268. 
Sullivan  v.  Langley,    277,    351,    385, 

552. 
Sullivan  v.  Robb,  468. 
Sullivan  Savings  Inst.  v.  Kelly,  568. 
Sulzbacher  v.  Shoe,  etc..  Bank,  569. 
Summers  v.  Glancey,  130. 
Summers  v.  Oberndorff,  88. 
Sumpter  v.  Wilson,  144. 


Sun  Ins.  Co.  v.  Seeligson,  356,  623. 
Supervisors  v.  Le  Clerc,  443. 
Surratt  v.  Young,  502,  503. 
Surty  V.  Skilton,  36. 
Sutherland  v.  Bank,  344. 
Sutherland  v.  Bradner,  465. 
Sutherland  v.  Peoria  Bank,  213,335. 
Sutton  v.  Hasey,  306,  653. 
Sutton  V.  Stevens,  544. 
Suydam  v.  Williamson,  438. 
Suydam  et  al.  v.  Huggeford,  11,  551, 

614. 
Swager  v.  Pierce,  75. 
Swain  v.  Mizner,  219. 
Swallow  V.  Duncan,  263,  344 
Swamscot  Machine  Co.  v.  Partridge, 

634. 
Swan  V.  McCracken,  226,  655. 
Swan  V.  Summers,  259. 
Swaney  v.  Hutchins,  26,  28,  3],  161. 
Swann  v.  Broome,  161. 
Swart  V.  Thomas,  201. 
Swartz  V.  Lawrence,  524,  605. 
Swatzel  V.  Arnold,  66. 
Swayze  v.  Doe,  252. 
Swearingen  v.  Bassett,  183. 
Swearingen  v.  Howser,  83,  471. 
Swearingen  v.  Wilson,  367. 
Sweeny  v.  Hunter,  509. 
Sweet  V.  Reed,  53,  259,  264,  276,  379, 

383. 
Sweetzer  v.  Claflin,  64,  289. 
Sweetzer  v.  Sparks.  232. 
Sweezey   v.   Bartlett,  463,   471,   484, 

485. 
Sweringen  v.  Eberius,  622. 
Swett  V.  Brown,  337,  410,  412. 
Swett  V.  Sprague,  252. 
Swift  V.  Crocker,  540. 
Swift  V.  Plessner,  696. 
Swift  V.  Tyson,  438. 
Swiggett  V.  Dodson,  556. 
Swisher  v.  Fitch,  301. 
Svvitzer  v.  Wellington,  316,  317. 
Sword  V.  Circuit  Judge,  87. 
Sydnor  v.  Galveston,  508. 
Syduor  v.  Tolman,  97. 
Symons  v.  Northern,  470. 


TABLE    OF    CASES. 


XCIX 


Tlie  references  are  to  pages. 


T. 


Taber  v.  Nye,  273. 

Tabor  v.  Big  Pittsburg  Mining  Co., 

76. 
Tabor  v.  Van  Vranken,  303,  381. 
Tacoraa  Co.  v,  Draham,  83, 
Tadlock  v.  Eccles.  501. 
Taft  V.  Bowker,  297, 
Tafts  V.  Manlove,  11,  504,  554, 
Taintor  v.  "Williams,  213,  403,  433, 
Talbot  V.  Pierce.  160  484. 
Talbot  V.  Tarlton,  258. 
Talcott  V.  Rosenberg,  92,  99,  124,  165, 

236. 
Taliaferro  v.  Lane,  31, 
Talladega  Co.  v.  McDonald,  356,  626. 
Tallant  v.  Gas  Light  Co.,  683, 
Tallenion  v.  Cardenas,  36. 
Tallman  v.  Bigelow,  92,  97. 
Tallman  v.  :SIcCarty,  458,  586. 
Talmie  v.  Thompson,  436. 
Tarns  V.  Bullitt,  647. 
Tanner,  etc.,  Co.  v.  Hall,  89,  90,  113, 

121,  124,  134. 
Tapp  V.  Green,  379. 
Tappan  v.  Harrison,  12. 
Tarbell  v.  Bradley,  71,  75. 
Tarbell  v.  Dickinson,  700. 
Tarkinton  v.  Broussard,  65,  481. 
Tate  V.  Morehead,  362. 
Tatum  V.  Wright,  195. 
Tatum  V.  Zachry,  508. 
Taylor  v.  Adams,  116. 
Taylor  v.  Badoux,  58. 
Taylor  v.  Benjamin,  651. 
Taylor  v.  Branscombe,  580. 
Taylor  v.  Burlington  &  Mo.  R.  R,  Co., 

319. 
Taylor  v.  Carryl,  285,  664. 
Taylor  v.  Cheever,  13. 
Taylor  v.  Collins,  365, 
Taylor  v.  Drane,  74. 
Taylor  v.  Echford,  562, 
Taylor  v.  Emery,  240,  445, 
Taylor  v.  Froncoso,  418. 
Taylor  v.  Gardner.  373. 
Taylor  v.  Gillian,  200,  289,  290. 


Taylor  v.  Hines,  568,  687. 

Taylor  v.  Jones,  222. 

Taylor  v.  Kain.  361, 

Taylor  v.  Knipe,  314, 

Taylor  v.  Knowlton,  236. 

Taylor  v.  Knox,  23,  27,  33,  54. 

Taylor  v.  Kuhuke,  50. 

Taylor  v.  Lynch,  303. 

Taylor  v.  McDonald,  184 

Taylor  v.  Missouri  Glass  Co.,  183. 

Taylor  v,  Mixter,  206,  232. 

Taylor  v.  Mj-ers,  44. 

Taylor  v.  Phelps,  645. 

Taylor  v.  Reed,  91. 

Taylor  v.  Richards,  138, 

Taylor  v.  Robinson,  547. 

Taylor  v.  Root,  73. 

Taylor  v.  Smdall,  305. 

Taylor  v.  Smith,  88. 

Taylor  v.  Taylor,  492,  525. 

Taylor  v.  Thompson,  456. 

Taylor  v.  Trust  Co.,  365. 

Tazewell  v.  Barrett,  634 

Teagar  v.  Landsley,  509. 

Teague  v.  Le  Grand,  329. 

Teal  V.  Lyons,  128,  690. 

Teichman  Com.  Co.  v.  Bank,  556. 

Telles  V.  Lynde,  263. 

Temper  v.  Brooks,  290. 

Temple  v.  Cochran,  43,  689. 

Temple  v.  Hooker,  467. 

Ten  Brock  v.  Pendleton,  473, 

Tenn.   River  Trausp.   Co.   v.   Kava- 

naugh,  71. 
Tennant  v.  Battey.  10. 
Tennant  v.  Watson,  13. 
Teuney  v.  Diss,  42. 
Terre  Haute,  etc.,  Co,  v.  Baker,  392, 

506. 
Terrill  v.  Rogers,  4. 
Territory  v.  Rindscoff,  700. 
Terry  v.  Lindsey,  292. 
Terry  v.  Sisson,  277,  364,  553. 
Tessier  v.  Crowley,  100. 
Tessier  v.  Englehart,  86,  106. 
Tevis  V.  Hughes,  148,  461,  477,  483. 
Thalheimer  v.  Hays,  483. 
Thatcher  v.  Bancroft,  623. 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Thatcher  v.  Goff,  142. 

Thatcher  v.  Kaucher,  43. 

Thatcher  v.  Powell,  449. 

Thayer  V.  Daniels,  303. 

Thayer'v.  Partridge,  370. 

Thayer  v.  Pratt,  643. 

Thayer  v.  Sherman,  291. 

Thayer  v.  Southwick,  271. 

Thayer  v.  Tyler,  286,  314. 

The  Belfast,  669. 

The  Blanche  Page,  525. 

The  Caroline,  105. 

The  C.  F.  Ackerman,  525. 

The  Eenrom,  537. 

The  Emily  and  Caroline,  105. 

The  Frances,  537. 

The  Independent,  394. 

The  Lizzie  Williams,  273. 

The  Mariana,  496,  537. 

The  Mary,  350. 

The  Mary  Anne,  538. 

The  Merino,  103. 

The  Monte- Allegre,  594. 

The  Oliver  Jordan,  285. 

The  Robert  Fulton,  285. 

The  Samuel,  105. 

The  Steamboat  Rover  v.  Stiles,  668. 

The  Tobago,  537. 

The  Virgin,  535. 

Theall  v.  Disbrow,  563. 

Thebaud  v.  Nat.  Cordage  Co.,  174. 

Their  man  v.  Vahle,  88,  90. 

Thelusen  v.  Smith,  534. 

Third  Nat.  Bank  v.  Gaston,  82,  83. 

Thole  v.  Watson,  612. 

Thomas  v.  Brown,  69,  276,  605. 

Thomas  v.  Dickinson,  42. 

Thomas  v.  Fuller,  379. 

Thomas  v.  Gibbons,  264,  509. 

Thomas  v.  Godwin,  304. 

Thomas  v.  Hoffman,  356. 

Thomas  v.  Hopper,  339. 

Thomas  v.  Johnson,  611. 

Thomas  v.  Price,  383. 

Thomas  v.  Richards,  6,  238. 

Thomas  v.  Sprague,  368,  382. 

Thomas  v.  Woolridge,  275. 

Thompson  v.  Allen,  337,  377. 


Thompson  v.  Allison,  388. 
Thompson  v.  Arthur,  9,  137,  401,  477, 

678. 
Thompson  v.  Baker,  51,  401,  403,  403, 

617. 
Thompson  v.  Brown,  191. 
Thompson  v.  Butler,  667. 
Thompson  v.  Carper,  75. 
Thompson  v.  Chambers,  30. 
Thompson  v.  Culver,  470. 
Thom2)son  v.  Dater,  43. 
Thompson  v.  Dickinson,  95. 
Thompson  v.  Eastburn,  3,  5,  227. 
Thompson  v.  Emmert,  424. 
Thompson  v.  Fisehesser,  365. 
Thompson  v.  Gains ville  N.  Bank,  263, 

392. 
Thompson  v.  Gould,  592. 
Thompson  v.  Jarvis,  272. 
Thompson  v.  Marsh,  190,  285. 
Thompson  v.  Rose,  108. 
Thompson  v.  Shackelford,  576- 
Thompson  v.  Shelby,  281. 
Thompson  v.  Silvers,  338,  642. 
Thompson  v.  Steamboat  Morton,  250, 

428. 
Thompson  v.  Stetson,  86. 
Thompson  v.  Stevens,  496. 
Thompson  v.  Stewart,  265. 
Thompson  v.  Taylor,  276. 
Thompson  v.  Thomas,  443,  447. 
Thompson  v.  Tinnen,  183. 
Thompson  v.  Tolmie,  441,  442. 
Thompson  v.  Tower  Manuf.  Co.,  406. 
Thompson  v.  Turner,  464. 
Thompson  v.  Wallace,  640. 
Thompson  v.  AVhitman,  449,  450. 
Thompson,  Alex.,  In  re,  25, 
Thompson's  Case,  34. 
Thompson,  Matter  of,  28,  39. 
Thorburgh  v.  Hand,  170. 
Thorington  v.  Merrick,  77,  91. 
Thormeyer  v.  Sisson,  355,  433. 
Thorn  v.  Knapp,  71. 
Thorn  \\  Woodruif,  292,  339. 
Thorndike  v.  Bath,  197. 
Thorne  v.  IMatthews,  649. 
Thornton  v.  Cook,  198. 


TABLE   OF   CASES. 


CI 


Tlie  references  are  to  pages. 


Thornton  v.  Machine  Co.,  344. 
Thornton  v.  Mulquinne,  254. 
Thornton  v.  Winter,  228. 
Thornton  v.  Wood,  13. 
Thorp  V.  Elliott,  272. 
Thorp  V.  Fetz's  Adm'r,  78. 
Thorp  V.  Preston,  273,  321. 
Thrasher  v.  Buckingham,  644. 
Threshing   Machine  Co.  v.  Miracle, 

293. 
Throop  V.  Maiden,  211,  213. 
Throop,  etc.,  Co.  v.  Smith,  201. 
Thurman  v.  Blankenship,  614. 
Thurneyssen  v.  Vouthier,  27,  40. 
Thurston  v.  Huntington,  545,  554. 
Tibbetts  v.  Tilton,  7. 
Tibbits  V.  Tovvnsend,  34. 
Tichenor  v.  Coggins,  572. 
Tiernan's  Ex'rs  v.  Woodruff,  66. 
Tiernay  v.  McGarity,  305,  509. 
Tiflfany  v.  Glover,  244. 
Tiffany  v.  Lord,  129,  132,  476. 
Tift  V.  Griffin,  443. 
Tilden  v.  Metcalf,  313. 
Tiller  v.  Shearer,  689. 
Tillinghast  v.  Johnson,  292,  837. 
Tilton  V.  Cofield.  60,  116,  165,  583,  587. 
Tilton  V.  Sanborn,  500. 
Tim  V.  Franklin,  322,  339. 
Tim  V.  Smith,  467,  468,  469,  541,  548. 
Timm  v.  Stegman,  264. 
Tinimons  v.  Garrison,  220. 
Timmons  v.  Johnson,  635. 
Tindell  v.  Wall,  337. 
Tingley  v.  Bateman,  282,  335, 454, 510. 
Tingley  v.  Dolby,  201. 
Tipsey  v.  Tiiompson,  195. 
Tirrell  v.  Canada,  200. 
Titcomb  v.  Seaver,  259. 
Tobar  v.  Losano,  501. 
Tobey  v.  Claflin.  582. 
Todd  V.  Birdsall,  316. 
Todd  V.  McCravey,  500,  503. 
Todd  V.  Missouri  Pac.  R.  Co.,  263,  324, 

344,  353,  509. 
Todd  V.  Shouse,  73. 
Toland  v.  Sprague,  422,  426,  440,  459. 
Toledo,  etc.,  R.  Co.   v.  McNulty,  649. 


Toledo,  etc.,  R.  Co.  v.  Reynolds,  356, 

623,  640. 
Toledo  Savings  Bank  v.  Johnston, 

700. 
Toll  V.  Knight,  624. 
Tomlinson  v.  Collins,  400,  401. 
Tomlinson  v.  Stiles,  171. 
Tomlinson  v.  Warner,  691. 
Tommey  v.  Gamble,  107,  108,  115. 
Tompkins  v.  Hemphill,  287. 
Tompkins,  etc.,  Co.  v.  Schmidt,  319. 
Toms  v.  Wasson,  2. 
Toothaker  v.  Allen,  364. 
Tootle  v.  Coldwell,  48. 
Tootle  V.  Miner,  548. 
Torlina  v.  Trorlicht,  49. 
Torrance  v.  Bolton,  592,  593. 
Torrens  v.  Hammond,  299. 
Torrent  v.  Booming  Co.,  147. 
Torrey  v.  Burnett,  190. 
Torrey  v.  Otis,  395,  399. 
Totten  V.  Sale,  129,  502. 
Totty  V.  Donald,  582. 
Toulmin  v.  Lesesne,  233. 
Tourville  v.  Pierson,  504 
Tower  v.  Church,  29. 
Towle  V.  Lamphere.  485. 
Towle  V.  Wilder,  324. 
Town  V.  Church,  25. 
Town  T.  Tabor,  238,  245. 
Towne  V.  Griffith,  259. 
Towns  V.  Pratt,  225. 
Tovvnsend  v.  Atwater,  262. 
Townseud  v.  Circuit  Judge,  363. 
Townsend  v.  Libbey,  356. 
Townsend  v.  Newell,  188,  189. 
Trabent  v.  Rummell,  74. 
Tracy  V.  Gunn,  112,  113. 
Tracy  v.  Hornbuckle,  314. 
Tracy  v.  Jenks,  163. 
Tracy  v.  McGarty.  305,  381. 
Tradesmen's  N.  Bank  v.  Cresson,  323, 
Trafford  v.  Hubbard,  497. 
Trager  v.  Feibleman,  266. 
Train  v.  Herrick,  309. 
Train  v.  Wellington,  403.  404 
Trammell  v.  Ramage,  699. 
Transit  Co.  v.  McRea,  696. 


Cll 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


Trapnall  v.  McAfee,  680,  695. 

Trautman  v.  Schvvalm.  91. 

Travis  v.  Tartt,  277,  339. 

Traweek  v.  Martin,  495,  680,  685. 

Treadway  v.  Ryan,  74. 

Treadway  v.  Treadway,  338. 

Treadwell  v.  Brown,  339. 

Treat  v.  Barber.  225. 

Tredwell  r.  Roscoe,  618. 

Trellson  v.  Green,  19. 

Trentman  v.  Wiley,  683. 

Trenton  Banking  Co.  v.  Haverstick, 

80,  319. 
Treusch  v.  Ottenburg,  77,  306. 
Trickett  v.  Moore,  275. 
Triebel  v.  Colburn,  89,  316. 
Trieber  v.  Blacher,  221. 
Triplett  v.  Graham,  507. 
Trombley  v.  Clark,  389. 
Trotter  v.  Dobbs,  502. 
Trotter  v.  Lehigh,  etc.,  Co.,  191,  289. 
Trotter  v.  Zink  &  Iron  Co.,  191. 
Troubee  v.  Wheeler,  683. 
Trowbridge  v.  Sickler,  108,  125. 
Trowbridge  v.  Weir,  140. 
Trow  Printing  Co.  v.  Hart,  82. 
Trow's  Printing  &  Bookbinding  Co. 

V.  Hart,  114,  468. 
Troxall  v.  Applegarth,  268. 
Troy  V.  Sargeant,  187. 
Troyer  v.  Schweiser,  646. 
Trudeau  v.  McVicar,  209. 
True  V.  Congdon,  577. 
True  V.  Emery,  546. 
Truitt  V.  Griffin,  268. 
Trunkey  v.  Crosby,  280. 
Trustees  of  Schools  v.  Tatman,  314 
Tua  V.  Carriere,  570. 
Tubb  V.  Madding,  648. 
Tuck  V.  Manning,  293, 
Tucker  v.  Adams,  183,  568,  68a 
Tucker  v.  Atkinson,  2,  288. 
Tucker  v.  Butts,  291. 
Tucker  v.  Byars,  207,  227. 
Tucker  v.  Clisby,  265. 
Tucker  v.  Frederick.  485. 
Tucker  v.  Hamlin,  684. 
Tucker  v.  Tilton,  562. 


Tucker  v.  Vandemark,  579. 

Tucker  V.  White,  116. 

Tuckey  v.  Smith,  395. 

Tufts  V.  Carradine,  354,  545. 

Tufts  V.  McClintock,  170,  221. 

Tufts  V.  Volkening,  99,  246,  334. 

Tuller  V.  Arnold,  473. 

Tunstall  v.  Worthington,  340. 

Tupper  V.  Cassell,  307. 

Turbill's  Case,  154. 

Turner  v.  Armstrong,  128,  271. 

Turner  v.  Austin,  239. 

Turner  v.  Bank  of  America,  442. 

Turner  v.  Burnell,  307. 

Turner  v.  Feudall,  191,  285,  287. 

Turner  v.  Hardin.  689. 

Turner  v.  Killian,  661. 

Turner  v.  McDaniel,  90,  103. 

Turner  v.  Lytle,  12,  222,  558,  672. 

Turner  v.  Miller,  698. 

Turner  v.  Railroad  Co.,  510. 

Turner  v.  Sioux  City,  506,  646. 

Turner  v.  Vaughan,  502. 

Turner  v.  Younker,  177,  683. 

Turpin  v.  Coates,  382,  644. 

Turpin  v.  Whitney,  465. 

Tuttle  V.  Howe,  504. 

Tuttle  V.  Turner,  504. 

Tux  worth  V.  Moore,  197. 

Twaddle  v.  Royers,  501. 

Tweedy  v.  Bogart,  354. 

Tweedy  v.  Jarvis,  364. 

Twombly  v.  Hunnewell,  395. 

Tyler  v.  His  Creditors,  534. 

Tyler  v.  Safford,  486,  514,  697. 

Tyler  v.  Ulmer.  395. 

Tyler  v.  Winslow,  635. 

Tynberg  v.  Colien,  676,  684,  686,  691. 

Tyrrell's  Heirs  v.  Rountree,  610,  616. 

Tyson  v.  Hamer,  130. 

Tyson  v.  Lansing,  31,  148. 

u. 

Uhrig  V.  Sinex,  681. 
UUman  v.  Eggert,  277. 
Ullman  v.  Myrick,  198. 
Ullmeyer  v.  Ehrmann,  367. 


TABLE   OF   CASES. 


cm 


The  references  are  to  pages. 


Ulraer  v.  Hiatt,  586. 

United  States  v.  Arredondo,  436. 

Updegraff  v.  Spring,  634. 

Updyke  v.  Wheeler,  161. 

Upper  Mississippi  Transportation  Co. 

V.  Whittaker,  458,  586. 
Uppinghouse  v.  Mundel,  509. 
Upton  V.  Craig,  220. 
Upton  V,  Hubbard,  185. 
Utley  V.  Smith,  395. 

V. 

Vairin  v.  Edmonson,   251,  852,  253, 

433,  443. 
Vallee  v.  Dumergue,  255,  421. 
Valle's  Heirs  v.  Flemming's  Heirs, 

592. 
Van  Amee  v.  Jackson,  199. 
Van  Arsdale  v.  Krura,  146,  148. 
Van  Buskirk  v.  Insurance  Co.,  298, 

302. 
Van  Dyke  v.  State,  63. 
Van  Etten  v.  Hurst,  170. 
Van  Keuren  v.  McLaughlin,  191. 
Van  Kirk  v.  Wilds,  92,  121. 
Van  Loan  v.  Kline,  10,  610,  616. 
Van  Loon  v.  Lyons,  95,  129,  132,  476. 
Van  Ness  v.  McLeod,  307. 
Van  Norman  v.  Judge  of  Jackson 

Circuit,  3,  16,  124,  214,  433. 
Van  Patten  v.  Burr,  303. 
Van  Pelt  v.  Littler,  170,  225. 
Van  Renselaer  v.  Kearney,  438,  596. 
Van  Riswick  v.  Lamon,  289. 
Van  Staphorst  v.  Pierce,  300. 
Van  Vechten  v.  Paddock,  157. 
Van  Vleet  v.  Stratton,  262. 
Van  AVinkle  v.  Iowa,  etc.,  Co.,  279. 
Van  Wj'ck  v.  Bauer,  13. 
Van  Wyck  v.  Hardy,  604. 
Vance  v.  McLaughlin,  203. 
Vanderford  v.  Van  Valkenberg,  7. 
Vanderhoof  v.  McAffee,  259,  365. 
Vanneter  v.  Grossman,  394. 
Van  tine  v.  Morse  293. 
Varian  v.  Association,  369. 
Varnell  v.  Speer,  336,  350. 


Varner  v.  Radcliff,  457,  461. 

Vason  V.  Clarke,  355. 

Vaughan  v.  Dawes,  470. 

Vaughn  v.  Fisher,  057. 

Vaughn  v.  Slurtevant,  623. 

Veach  v.  Adams,  186. 

Veazie  v.  Somerby,  197. 

Veazie  v.  Williams.  596. 

Veiths  V.  Hagge,  680. 

Venable  v.  New  York  Ins.  Co.,  569. 

Vermont,  etc.,  R.  Co.  v.  Railroad  Co., 

407. 
Vernon  v.  Upson,  49,  193. 
Vertrees  v.  Hicks,  390. 
Vickery  v.  Ward,  684. 
Victor  V.  Hartford    Insurance    Ca, 

271. 
Victor  V.  Henlein,  45. 
Vienne  v.  McCarty,  483,  486. 
Vierbeller  v.  Brutto,  292,  296. 
Vilas  V.  Reynolds,  208. 
Viles  V.  Bangs,  193. 
Vincent  v.  Huddleston,  10. 
Vincent  v.  Watson,  301. 
Vinton  v.  Bradford,  190,  285. 
Vinton  v.  Mead,  465. 
Violet  V.  Tyler,  235. 
Vogel  &  Reynolds.  Matter  of,  573. 
Vogt  V.  Dorsey,  460. 
Vollmer  v.  Chicago,  etc.,  Co.,  273. 
Von  Beck  v.  Shuman,  585. 
Von  Roun  v.  Superior  Court,  572. 
Voorhies    v.    Bank    of    the    United 

States,  441,  448,  587. 
Voorhies  v.  Denver  Hardware  Co., 

262. 
Voorhies  v.  Eiting,  136,  5.76. 
Voorhies  v.  Henness}-,  209. 
Voorhies  v.  Hoagland.  185. 
Voorhies  v.  Michaelis,  474. 
Voorhies  v.  Session^,  190,  289. 
Voi-se  V.  Phillips,  12,  674, 689,  691,  696. 
Vosburgh  v.  Welch,  119. 
Vose  V.  Cockroft,  490,  529. 
Vose  V.  Handy,  251. 
Voss  V.  Murray,  577. 
Vreelan  v.  Brown,  468. 
Vurpillat  v.  Zelmer,  686. 


CIV 


TABLE    OF   CASES. 


Tlie  references  are  to  pages. 


w. 


Wabash  v.  Dougan,  512. 

Wabash  R.  Co.  v.  Seifert,  509. 

Wachter  v.  Famachron,  56,  57. 

Waddell  v.  Cook,  183,  618. 

Wadeleigh  v.  Jordan,  374. 

Wadsworth  v.  Cheeny,  1 14. 

Wadsworth  v.  Clark,  643. 

Wadsworth  v.  WaUiker,  176,  395,  402. 

Wafer  v.  Bank,  667. 

Waffer  v.  Goble,  69. 

Waffle  V.  Goble,  122. 

Wagener  v.  Booker,  130. 

Wagner  v.  Stocking,  12,  672. 

Wagon  Co.  v.  Benedict,  486. 

Wahle  V.  Connor,  287. 

Waite,  In  re,  195. 

Waite  V.  Osborne,  292. 

Wakefield  v.  Fairman,  222,  297. 

Walbridge  v.  Hail,  442. 

Walbridge  v.  Spalding,  139. 

Wakot  V.  Pomeroy,  180. 

Walcott  V.  Hendrick,  32. 

Waicott  V.  Keith,  225,  337,  412 

Walden  v.  Dudley,  169. 

Waldman  v.  O'Donuoll,  316. 

Waldron  v.  Wilcox,  257,  282. 

Wales  V.  Clark,  159. 

Wales  V.  Muscatine,  316,  317,  319. 

Walke  V.  McGehee,  271. 

Walker  v.  Bank  of  Mobile,  129. 

Walker  v.  Barrelli,  15,  32. 

Walker  v.  Beaury,  57. 

Walker  v.  Collins,  686,  691. 

Walker  v.  Cook,  313. 

Walker  v.  Gottrell,  5,  254, 483,443,  444. 

Walker  v.  Day,  433. 

Walker  v.  Detroit,  etc.,   R.    Co.,  259, 

324. 
Walker  v.  Fitts,  196,  223. 
Walker  v.  Foxcroft,  190,  286,  395. 
Walker  v.  Gibbs,  273. 
Walker  v.  Gilbert,  562. 
Walker  v.  Haggerty,  47. 
Walker  v.  Plintze,  506. 
Walker  v.  Ivey,  129. 
Walker  v.  Railroad  Co.,  272. 


Walker  v.  Roberts,  540,  585. 
Walker  v.  Taylor,  289. 
Walker  v.  Turner,  442. 
Walker  v.  Wonderlick,  177. 
Walker  v.  Woods,  159. 
Walker  v.  Zorn,  639. 
Walker,  Ex  parte,  627. 
Walkins  v.  Cawthorn,  427. 
Wall  V.  Pulliam,  406,  427,  433. 
Wall  V.  Wall,  444. 
Wallace  v.  Barker,  211. 
Wallace  v,  Bogel,  607,  613. 
Wallace  v.  Breeds,  197. 
Wallace  v.  Castle,  29. 
Wallace  v.  Finberg,  680,  683. 
Wallace  v.  Forest,  171,  601. 
Wallace  v.  Galloway.  184, 185. 
Wallace  v.  Haywood,  303. 
Wallace  v.  Lawyer,  289,  312,  316. 
Wallace  v.  Lewis,  472. 
Wallace  v.  Maroney,  575. 
Wallace  v.  McConnell,  389,  616. 
Wallace  v.  Monroe,  208. 
Wallace  v.  Robeson,  556. 
Wallace  v.  Swan,  547. 
Wallace  v.  Terry,  700. 
Wallace  v.  Wallace,  92,  125,  138. 
Wallach  v.  Sippilli,  89. 
Walling  V.  Miller,  298,  572. 
Wallis  V.  Murphy,  93. 
Wallis  V.  Taylor,  469. 
Walser  v.  Thies,  691. 
Walsh  V.  Adams,  183. 
Walter  v.  Bickham,  413,  462. 
Walters  v.  Insurance  Co.,  303. 
Walters  v.  Monroe,  431. 
Walton  V.  Cope,  397. 
Walton  V.  Sharp,  623,  63a 
Walts  V.  Nichols,  546. 
Wambold  v.  Vick,  170. 
Wands,  etc.  v.  Rosenberg,  94 
Wannell  v.  Kern,  58. 
Wanzell  t.  Morrisey,  87. 
Waples  Platter  Co.  v.  Low,  103. 
Ward  V.  Brewer,  580. 
Ward  V.  Carlton,  603. 
Ward  V.  County  of  Hartford,  313, 313, 
316. 


TABLE    OF   CASES. 


cv 


The  references  are  to  pages. 


Ward  V.  Howard,  69,  540. 

Ward  V.  Lamson,  270. 

Ward  V.  Lewis,  300. 

Ward  V.  McKenzie,  10,  422,  43a 

Ward  V.  Morrison,  302. 

Ward  V.  Wafford,  501. 

Ward  V.  Whitney,  515. 

Warden  v,  Adams,  563,  610. 

Warder  v.  Baker,  267,  383. 

Warder  v.  Thrilkeld,  39,  40,  46. 

Wardle  v.  Briggs,  372. 

Ward  well  v.  Jones,  313.      . 

Ware  v.  Go  wen,  43,  270. 

Ware  v.  Seasongood,  16,  73,  77. 

Ware  v.  Todd,  92,  99,  125,  604» 

Warne  v.  Kendall,  279. 

Warner  v.  Bank,  201,  269. 

Warner  v.  Everett,  44,  124. 

Warner  v.  Jaffray,  510. 

Warner  v.  Kade,  42. 

Warner  v.  Perkins,  277. 

AVarner  v.  Rice,  496. 

Warner  v.  Webster,  428,  433,  445. 

Warner,  Matter  of.  41. 

Warren  v.  Booth,  327. 

Warren  v.  Buckminster,  197. 

Warren  v.  Copelin,  302,  653. 

Warren  v.  Dick,  246,  255. 

Warren  v.  Leland,  395,  399. 

Warren  v.  Lord,  114,  481,  530. 

Warren  v.  Matthews,  296. 

Warren  v.  Moore,  383. 

Warren  v,  Purtell,  113,  166. 

Warren  Manuf.  Co.  v.  Etna  Ins.  Co., 

448. 
Wart  V.  Mann,  268. 
Warwick  v.  Chase,  71,  75. 
Wasey  v.  Mahoney,  116. 
Washburn  v.  Bank  of  Bellows  Falls, 

618. 
Washburn  v.  Clarkson,  636. 
Washburn  v.  McGuire,  51. 
Washburn  v.  New    York,    etc.,   Co., 

360,  623. 
Wasson  v.  Cone,  150,  458,  525,  607. 
Wasson  v,  Linster,  238. 
Wasson  v.  Millsap,  446. 


Waterbury  v.  Board  of  Comm'rs,  312, 

314. 
Water  Co.  v.  Middaugh,  367. 
Waterhouse  v.  Bird,  399. 
Waterhouse  v.  Smith,  213,  238,  427, 

433. 
Waterman  v.  Treat,  399. 
Watkins  v.  Cason,  652. 
Watkins  v.  Cawthorn,  400. 
Watkins  v.  Field,  337. 
Watkins  v.  Otis,  200,  265. 
Watkins  v.  Over  by,  504. 
Watkins  v.  Pope,  301. 
Watkins  v.  Stevens,  153. 
Watkins  v,  Wallace,  123. 
Watkins  N.  Bank  v.  Sands,  50. 
Watson  V.  Auerbach,  487. 
Watson  V,  Jackson,  558. 
Watson  V.  Kane,  382. 
Watson  V.  Kennedy,  688. 
Watson  V.  Montgomery,  383. 
Watson  V.  Pierpont,  26,  32. 
Watson  V.  Simpson,  487. 
Watson  V.  Todd,  275,  289. 
Watson  V.  Watson,  169. 
Watt  V.  Carnes,  82. 
Watt  V.  Wright,  207. 
Watts  V.  Harding,  62,  70. 
Watts  V.  Nichols,  226. 
Watts  V.  Rice,  3. 
Watts  V.  Robertson,  601. 
Watts  V.  Shropshire,  680. 
Waxe  V.  Russell.  12. 
Waxelbaum  v.  Paschel,  14,  16,  434, 
Wayman  v.  Southard,  438. 
Waynant  v.  Dodson,  607. 
Wear  v.  Sanger,  536. 
Wearne  v,  France,  466,  485. 
Weatherbee  v.  W^eatherbee,  246. 
Weaver  v.  Ashcroft,  183,  619. 
Weaver  v.  Cressman,  287,  289. 
Weaver  v.  Davis,  290,  291. 
Weaver  v.  France,  42. 
Weaver  v.  Hayward,  88,  89. 
Weaver  v.  Puryear,  70. 
Weaver  v.  Roberts,  244. 
Weaver  v.  Wood,  394,  395. 


CVl 


TABLE    OF   CASES. 


Hie  references  are  to  pages. 


Webb  V.  Edwards,  505. 

Webb  V.  Lea,  359. 

Webb  V.  McCauley,  289,  313. 

Webb  V,  Peelc,  265. 

Webber  v.  Bolte,  263,  273. 

Webber  v.  Doran,  373. 

Weber  v.  Carter,  624. 

Weber  v.  Cordes,  459. 

Weber  v.  Weitling,  38. 

Webster  v.  Adaius,  399,  644. 

Webster  v.  Daniel,  84,  86,  96,  98,  230. 

Webster  v.  Lowell,  645. 

Webster  v.  Parsons,  443. 

Webster  v.  Reed,  451. 

Webster  v.  Reid,  434,  448, 

Webster  v.  Steele,  371,  630,  635. 

Webster  Wagon  Co.  v.   Peterson,  5, 

272,  387,  635. 
Weed  V.  Dills,  530.    ■ 
Weed  Sewing  Machine  Co.  v.  Bou- 

telle,  322. 
Weeton  v.  Woodcock,  530. 
Wehle  V.  Butler,  170. 
Wehle  V.  Conner,  92. 
Wehle  V.  Spellman,  527. 
Weightman  v.  Hatch,  181. 
Weil  V.  Geier,  162. 
Weil  V.  Kittay,  150. 
Weil  V.  Tyler,  262,  274. 
Weiller  v.  Schreiber,  48,  55. 
Weimeister  v.  Manville,  93, 109. 
Weingardt  v.  Billings,  159. 
Weir  V.  Dustin,  136. 
Weirich  v.  Scribner,  363,  625. 
Weis  V.  Basket,  211. 
Weis  V.  Chipman,  110,  143. 
Weis  V.  Goetter,  406. 
Weitkamp  v.  Loehr,  28,  34. 
Welcli  V.  Gurley,  293. 
Welch  V.  Robinson,  32. 
Welch  V.  Whittemore,  568. 
Weller  v.  Hawes,  695. 
Weller  v.  Weller,  372. 
Wellover  v.  Soule,  165,  376. 
Wells  V.  American  Express  Co.,  337, 

340,  360. 
Wells  V.  Baldwin,  667. 
Wells  V.  Columbia  N.  Bank,  560. 


Wells  V.  Banister,  359. 

Wells  V.  Brander,  468. 

Wells  V.  Danford,  113,  465. 

Wells  v.  Detroit,  3. 

Wells  V.  East  Tenn.,  etc.,  324. 

Wells  V.  Greene,  259. 

Wells  V.  Gurney,  219. 

Wells  V.  Hawes,  265. 

Wells  V.  Hogan,  89. 

Wells  V.  Lamb,  192. 

Wells  V.  Mace,  372. 

Wells  V.  Parker,  90,  133. 

Wells  V.  People,  37,  91. 

Wells  V.  Stevens,  444. 

Wells  V.  St.  Dizier,  107,  488. 

Welsh  V.  Barrow,  513,  516. 

Welsh  V.  Joy,  333,  616. 

Welsh  V.  Lewis,  413. 

Weudel  v.  Durbin,  6. 

Wendell  v.  Pierce,  190,  385,  390,  314 

Wengert  v.  Bowers,  637. 

Wentworth  v.  Sawyer,  110,  165,  360. 

Went  worth  v.  Weymouth,  653. 

Wentworth  v.  Whittemore,  373. 

Wentzler  v.  Ross,  109. 

Werries  v.  Missouri  Pac.  R.  Co.,  325. 

Wescott  V.  Archer,  16,  247,  433,  437. 

Wessels  v.  Boettcher,  62,  245. 

West  V.  Meserve,  657. 

West  V.  Norfolk,  135. 

West  V.  Piatt,  277,  553. 

West  V.  Woolfolk,  110,  443. 

West  Phila.  Bank  v.  Dickson,  587, 
573. 

West  River  Bank  v.  Gorham,  190. 

West  Tennessee  Agricultui'al  Asso- 
ciation V.  Madison,  83. 

Westcott  V.  Sharp,  73,  83, 117. 

Westerfelt  v.  Pinckney,  334. 

Western  R.  Co.  v.  Thornton,  336,  337. 

Westervelt  v.  Lewis  &  Tooker,  3, 
434,  436. 

Wetherill  v.  Flanagan,  371. 

Wetherwax  v.  Paine,  81,  101. 

Wetmore  v.  Daffin,  80,  140. 

Wetsell  V.  Tillman.  680,  685. 

Wetter  v.  Pucker,  647. 

Wetzel  V.  Simon,  561. 


TABLE   OF   CASES. 


evil 


Tlie  references  are  to  pages. 


Wetzell  V.  Naters,  284. 

Whalen  v.  Harrison,  314. 

Whalen  v.  McMahon.  303,  536,  540. 

Wharton  v.  Conger,  93,  228,  491,  521. 

Wheat  V.  Bower,  230. 

Wheat  V.  Raihoad  Co.,  324,  344. 

Wheaton  v,  Neville,  208. 

Wheaton  v.  Sexton,  435. 

Wheeler  v.  Akhich,  648. 

Wheeler  v.  Bowen,  292,  29a 

Wheeler  v.  Cobb,  33. 

AVheelor  v.  Degnan,  27,  34. 

Wheeler  v.  Emerson,  372. 

Wheeler  v.  Fanner,  14.  89,  117. 

Wheeler  v,  McDill,  517. 

Wheeler  v.  Moore,  2U3. 

Wheeler  v.  Slavens,  476, 

Wheeler  v.  Smith,  288. 

Wheelock  v.  Lee,  457. 

Wheelock,  In  re,  570. 

Whidden  v.  Drake,  317. 

AVhipley  v.  Dewey,  190. 

Whipple  V.  Cass,  540. 

Whipple  V.  Hall,  483. 

Whipple  V.  Hill,  79,  109,  162. 

Whipple  V.  Robbins,  372,  645. 

Whipple  V.  Sheldon,  549, 

Whipple  V.  Thayer,  278. 

Whitaker  v.  Pendola,  496. 

W^hi taker  v.  Sumner,  206. 

Whitcomb  v.  Atkins,  392. 

Whitcomb  v.  Whitcomb,  495. 

Whitcomb  v.  Woodworth,  567. 

Wliite  V.  Bird,  361. 

White  V.  Casey,  83,  377. 

Wliite  V.  Coleman,  301. 

White  V,  Crow,  587. 

White  V.  Culter,  190. 

White  V.  Duggan,  516. 

White  V,  Dunn,  508. 

White  V.  Featherstonhaugh,  465. 

White  V.  Floyd,  605,  606. 

White  V.  Hawkins,  517. 

White  V.  Heavner.  622. 

White  T.  Hobart,  505. 

White  V.  Jenkins,  259,  271. 

White  V.  Jones,  442,  618. 

Wliite  V.  Kahn,  640. 


White  V.  Kilgore,  635. 

White  V.  Ledyard,  296. 

White  V.  Leszynsky,  54. 

White  V.  Lynch,  104. 

White  V.  Madison,  408. 

White  V.  Morton,  223. 

White  V.  O'Bannou,  207,  576. 

White  V.  Parish,  183. 

White  V.  Prior,  232,  234. 

White  V.  Richardson,  301. 

White  V,  Stanley,  100. 

WHiite  V.  Theilens,  5. 

W^hite  V.  White,  267,  411. 

White  V.  Wiley.  680. 

Wiiite  V.  Williams,  47. 

White  V.  Wilson,  47. 

White  V.  Woodward,  618. 

White  V.  Wyley,  691,  692. 

White's  Bank  v.  Smith,  643. 

White  Crow  v.  White  Wing,  558. 

White  Deer  Overseer's  Appeal,  503. 

Whitehead  v.  Coleman,  292. 

Whitehead  v.  Henderson,  341,  377. 

Whitehead  v.  Patterson,  626. 

Whitehill  v.  Basnett,  207. 

Whiteside  v.  Oakman,  470. 

Whitfield  V.  Hovey,  472. 

Whiting  V.  Budd,  456,  483. 

Whiting  V.  Earle,  301. 

Whitley  v.  Steakley,  27. 

Whitman  v.  Willis,  573. 

Whitman,  etc.,  Ass'u  v.  National,  etc., 

Ass'n,  134,  143,  612. 
Whitner  v.  Von  Minden,  57. 
Whitney  v.  Blackburn,  162. 
Whitney  v.  Brown  well,  681. 
Whitney  v.   Brunette,   106,  114,   125, 

152,  583. 
Whitney  v.  Bntterfield,  161,  216,  656. 
Wliitney  v.  Dean,  268. 
Whitney  v.  Farrar,  13. 
Whitney  v.  Farwell,  400,  401,  402. 
Whitney  v.  Hirsch,  70. 
Whitney  v.  Kimball.  78. 
Whitney  v.  Ladd.  395,  396. 
Whitney  v.  Lehmer,  629. 
Whitney  v.  Muuroe.  276. 
Whitney  v.  Silver,  254. 


CVIU 


TABLE    OF   CASES. 


Tlie  references  are  to  x>ages. 


Whitset  V.  Womack,  533. 
Whittenberg  v.  Lloyd,  111,  166,  433. 
Whittier  v.  Smith,  289,  395. 
Whitwell  V.  Brigham,  13,  14 
Whitwortli  V.  Pelton,  327. 
Whitworth  v.  Railroad,  363. 
WJiorley  v.   Memphis,   etc.,   R.  Co., 

623,  625,  638. 
Whorton  v.  ]Morayne,  442. 
"Wichita,  etc.  v.  Records,  487,  555. 
Wicker  v.  Scotield,  14. 
Wickes  V.  Caulk,  442, 
Wickham  v.  Nalty,  466. 
Wickmau  v.  Nalty,  468. 
Wicks  V.  Branch  Bank,  303. 
Widgery  v.  Haskell,  219. 
Wieland  v.  Oberne,  685. 
Wiggin  V.  Atkins,  173,  175. 
Wiggin  V.  Day,  580. 
Wight  V.  Hale,  64, 165. 
Wight  V.  Warner,  121. 
Wigwall  V.  Union,  etc.,  Co.,  645,  647. 
Wilbraham  v.  Snow,  394. 
Wilbur  V.  Flannery,  290. 
Wilcher  V.  Shea,  355. 
Wilcox  V.  Clement,  304,  688. 
Wilcox  V.  Howe,  497,  501. 
Wilcox  V.  Jackson,  450. 
Wilcox  V.  McKenzie,  691. 
Wilcox  V.  Mills,  307. 
Wilcox  V.  Smith,  482. 
Wilcoxen  v.  Miller,  617. 
Wilcoxeu  V.  Morgan,  181. 
Wilcus  V.  Kling,  273. 
Wild  V.  Ferguson,  308. 
Wilder  v.  Bailey  &  Trustee,  287. 
Wilder  v.  City  of  Chicago,  441. 
Wilder  v.  Holden,  227. 
Wilder  v.  Shea,  292,  319,  327,  381. 
Wilder  v.  Weatherhead,  337,  550. 
Wildes  V.  Nahant  Bank,  281. 
Wildman  v.  Van  Gelder,  42. 
Wikliier  v.  Ferguson,  365. 
Wilds  V.  Blanchard,  211. 
Wiles  V.  Lee,  363. 
Wiley  V.  Aultman,  80,  90. 
AViley  v.  Bennett,  83,  111. 
Wiley  V.  Moor,  516. 


Wiley  V.  Pratt,  461. 
Wiley  V.  Sledge,  184. 
Wiley  V.  Traiwick,  692, 
Wilhelmi  v.  Haffner,  385; 
Wilke  V.  Cohn,  105,  434,  485. 
Wilkenson  v.  Hall,  372. 
Wilkie  V.  Jones,  4,  15,  426,  434,  611. 
Wilkins  V.  Tourtellott,  87,  221,  238. 
Wilkinson  v.  Leland,  442. 
Wilkinson  v.  Patterson,  462. 
Will  V.  Whitney,  216. 
Willard  v.  Butler,  262. 
Willard  v.  Decatur,  276,  290. 
Willard  v.  Sheafe,  272,  273. 
Willard  v.  Sperry,  227. 
Willard  v.  Sturtevant,  259. 
Willet  V.  Equitable  Ins.  Co.,  282. 
Willet  V.  Price,  357. 
Willet  V.  Willett,  76. 
Willets  V.  Ridgway,  611. 
Willets  V.  Waite,  195. 
Williams  v.  Bank,  437. 
Williams  v.  Babbit,  236. 
Williams  v.  Barrow,  134,  135,  477. 
Williams  v.  Bernwell,  700. 
Williams  v.  Blunt,  442. 
Williams  v.  Boardman,  311,  313. 
Williams  v.  Bowden,  495. 
Williams  v.  Brackett,  242. 
Williams  v.  Brown,  687. 
Williams  v.  Cheesebrough,  244 
Williams  v.  Coleman,  128. 
Williams  v.  Eikenberry,  170,  657. 
Williams  v.  Freeman,  77. 
Williams  v.  Gage,  271,  275. 
Williams  v.  Gilkerson,  462. 
Williams  v.  Glasgow,  122. 
Williams  v.  Hitzie,  629. 
Williams  v.  Housel,  371,  384 
Williams  v.  Hunter,  681,  691,  693. 
Williams  v.  Jones,  289,  290,  384 
Williams  v.  Keuney,  649. 
Williams  v.  Le  Blanc,  698. 
Williams  v.  Link,  500. 
Williams  v.  Marston,  272. 
Williams  v.  Martin,  97. 
Williams  v.  Morgan,  170, 188,  228,659. 
Williams  v.  Piuer,  569. 


TABLE   OF    CASES. 


CIX 


Tlie  references  are  to  pages. 


Williams  v.  Pomeroy,  302. 
Williams  v.  Powell.  218,  398. 
Williams  v.  Railroad,  77,  263,  272. 
Williams  v.  Reed,  140,  265. 
Williams  v.  Sharpe,  114. 
Williams  v.  Skipwith,  479. 
Williams  v.  Stewart,   249,  432,   433, 

442,  461. 
Williams  v.  Stock  Board.  109 
Williams  v.  Vanmetre,  556. 
Williams  v.  VVaddell,  548. 
Williams  v.  Walker,  466. 
Williams  v.  Weaver,  154. 
AVilliams  v.  Whiting,  28. 
Williams  v.  Williams,  459,  628. 
Williams  v.  Young,  270. 
Williams  &  Burce  v.  Stewart,  459. 
Williamson  v.  Ball,  442. 
Williamson  v.  Berry,  438, 442, 448, 450. 
Williamson  v.  Bowie,  620. 
Williamson  v.  Gayle,  637. 
Williamson  v.  Harris,  494. 
Willing  V.  Conseqiia,  633. 
Willis  V,  Brenmer,  49,  193. 
Willis  V.  Crooker,  114,  530. 
Willis  V.  Heath,  280,  637. 
Willis  V.  Lowry,  42,  52,  680,  683. 
Willis  V.  Lyman,  80,  81. 
Willis  V.  Matthews,  501. 
Willis  V.  McNatt,  691. 
Willis  V.  McNeill,  691. 
Willis  V.  Mike,  501. 
Willis  V.  Mooring,  90,  228. 
Willis  V.  Pounds,  617. 
Willis  V.  Rivers,  516. 
Willis  V.  Thompson,  536. 
Williston  V.  Jones,  50. 
Willman  v.  Friedman,  13. 
Wills  V.  Noyes,  692. 
Wills  V.  Sprague,  7. 
Wilmerding  v.  Cunningham,  89. 
Wilson  V.  Albright,  200,  276. 
Wilson  V.  Allen,  148. 
Wilson  V.  Arnold,  84,  89,  121,  123. 
Wilson  V.  Bank  of  La.,  308. 
Wilson  V.  Bartholomew,  505. 
Wilson  V.  Beadle,  433. 
Wilson  V.  Blake,  540,  553. 
Wilson  V.  Britton,  53,  55,  484. 


Wilson  V.  Burney,  377,  644,  651. 

Wilson  V.  Churchman,  16 

Wilson  V.  Cole,  54,  95. 

Wilson  V,  Dockery,  42. 

Wilson  V.  Felthouse,  687. 

Wilson  V.  Forsyth,  12. 

Wilson  V.  Groelle,  347. 

Wilson  V.  Hill,  556. 

Wilson  V.  Joseph,  307. 

Wilson  V.  Kelly,  059. 

Wilson  V.  Lane,  225. 

Wilson  V.  Lewis,  316,  317. 

Wilson  V.  Louis  Cook  Manuf.  Co.,  471. 

Wilson  V.  Lucas,  576. 

Wilson  V.  Madison,  504. 

Wilson  V.  Manufacturing  Co.,  71, 684. 

Wilson  V.  McElroy,  499. 

Wilson  V.  McEvoy,  697. 

Wilson  V.  Murphy,  652. 

Wilson  V.  Paulson,  495. 

Wilson  V.  Ray,  239. 

Wilson  V.  Reilly,  282, 

Wilson  V.  Ridgely,  285. 

Wilson  V.  Robertson,  55. 

Wilson  V.  Root,  695. 

Wilson  V.  Spring,  424. 

Wilson  V.  Wagar.  362. 

Wilson  V.  Wilson's  Adm'r,  531,  524. 

Wilson  V.  Wood,  199. 

Wiltse  V.  Stearns,  28,  93,  125. 

Wimer  v.  Pritchartt,  273. 

Winchell  v.  Allen,  285,  292,  313. 

Winchell  v.  McKenzie,  657. 

Winchell  v.  Noyes,  72. 

Winchester  v.  Cox,  689. 

Winchester,  etc.  v.  Creary,  659. 

Windley  v.  Bradway,  86. 

Windmiller  v.  Chapman,  228. 

Windsor  v.  McVeigh,  603. 

Windt  V.  Banniza,  471. 

Windwart  v.  Allen,  357. 

Wing  V.  Bradner,  194,  461 

Wing  V.  Bishop,  566. 

Wiiigate  V.  Wheat,  220. 

Wingfield  v.  McLure,  640. 

Wingo  V.  Purdy,  42.  474. 

Winkler  v.  Barthel,  93,  95. 

Winslow  V.  Bracken,  385. 

Winslow  V.  Fletcher,  282. 


ex 


TABLE    OF   CASES. 


TJie  references  are  to  pages. 


Winsor  v.  Orcutt,  695. 
Winston  v.  Ewing,  275. 
Winstonly  v.  Savage,  35. 
Winterlield  v.  Milwaukee,  etc.,  R.  Co. 

506. 
Winterfield  v.  Railroad,  494,  506. 
Winter  v.  Simpson,  503. 
Winters  v.  Pearson,  106,  113,  491. 
Winthrop  v.  Carleton,  643. 
Wirker  v.  Scofield,  84. 
Wirt  V.  Dinau,  63. 
Wise  V.  Hilton,  652. 
Wise  V.  Rothschild,  347. 
Wiswall  V.  Ticknor,  48. 
Withers  v.  Brittain,  71. 
Withers  v.  Fuller,  623. 
Withington  v.  Southworth,  245. 
Witt  V.  Meyer.  246. 
Witte  V.  Meyer,  583. 
Witter  V.  Little,  365. 
Wolf  V.  Cook,  3, 165,  239,  461,  490,  491. 
Wolf  V.  McGavock,  28,  92. 
Wolf  V.  Styx,  5,  521,  527. 
Wolfe  V.  Crawford,  188,  196 
Wolff  V.  Bank  of  Commerce,  640. 
Wolford  V.  Phelps,  590. 
Womack  v.  McAhren,  462. 
Wood  V.  Barker,  691.  692. 
Wood  V.  Bodine,  394,  658. 
Wood  V.  Bodwell,  306. 
Wood  V.  Buxton,  272. 
Wood  V.  Carleton,  490. 
Wood  V.  Denny,  114,  530. 
Wood  V.  Hamilton,  27. 
Wood  V.  Lake,  643. 
Wood  V.  McCain,  547. 
Wood  V.  Partridge,  272,  302,  653. 
Wood  V.  Reynolds,  364. 
Wood  V.  Smith,  166. 
Wood  V.  Squiers,  139,  148,  477. 
Wood  V.  Thomas,  579. 
Wood  V.  Wells,  106. 
Wood  V.  Weir,  205,  691. 
Woodbridge  v.  Bank,  549. 
Woodbridge  V.  Morse,  270,  288,  291. 
Woodbridge  v.  Perkins,  300. 
Woodbury  v.  Long,  170,  189,  222. 
Woodiiouse  V.  Commonwealth   Ins. 

Co.,  307. 


Woodley  v.  Shirley,  160,  228,  479. 

WT)odman  v.  Trafton,  405 

Woodruff  V.  Bacon,  637. 

Woodruff  V.  Sanders,  470. 

Woodruff  V.  Taylor,  7. 

Woodruff  V.  Ives,  15. 

Woods  V.  Brown,  357. 

Woods  V.  Bugby,  563. 

Woods  V.  Huffman,  687. 

Woods  V.  Milford  Savings  Institu- 
tion, 648. 

Woods  V.  Tnnquary,  73. 

Woodward  v.  Adams,  520,  521. 

Woodward  v.  Clark,  660. 

Woodward  v.  Ham,  566. 

Woodward  v.  Munson,  400,  401. 

Woodward  v.  Sartwell,  397. 

Woodward  v.  Tupper,  372. 

Woodward  v.  Witascheck,  520. 

Woodward  v.  Woodward,  292. 

Woodward  v.  Wyman,  261. 

Woodworth  v.  Lemmerman,  218. 

Woolbridge  v.  Holmes,  260,  329. 

Woolfolk  V.  Ingraham,  395,  609. 

Woolkins  v.  Haid,  3. 

Woolner  v.  Lehman,  556. 

Wooluer  v.  Spalding,  683. 

Wooster  v.  McGee,  15,  69.  ; 

Wooster  v.  Page,  507. 

Worcester  National  Bank  v.  Chee- 
ney,  10,  206. 

Work  v.  Brown,  648. 

Work  v.  Gla  skins.  634. 

Work  v.  Titus,  135,  139,  476. 

Worseley  v.  De  Mattos,  577. 

Worstell  v.  Ward,  121. 

Worth  V.  Branson,  496. 

Worthington  v.  Care}',  115. 

Worthington  v.  Hylyer,  251. 

Worthington,  In  re,  162. 

Worthley  v.  Goodbar,  182. 

Wray  v.  Gilmors,  40,  105,  475. 

Wright  V.  Andrews,  465. 

Wright  v.  Bosworth,  261. 

Wright  V.  Boynton,  464. 

Wright  V.  Chicago,  etc.,  R.   Co.,  385. 

Wright  V.  Dawson,  403,  404,  468. 

Wrigiit  V.  Deyoe,  503. 

Wright  V.  Dunning,  501,  504. 


TABLE    OF   CASES. 


CXI 


The  references  are  to  pages. 


Wright  V.  Foord,  270. 

Wright  V,  Grabfelder,  502. 

Wright  V.  Hale,  582. 

Wright  V.  Her  rick.  116,  277,  553. 

Wright  V.  Hobsou,  88. 

Wright  V.  Keyes,  523. 

Wright  V.  Lassiter,  576. 

Wright  V.  Manns,  519,  611,  624 

Wright  V.  Morley,  403. 

Wright  V.  Oakey,  462. 

Wright  V,  Raghuid,  84,  476. 

Wright  V.  Railroad  Co.,  510,  511. 

Wright  V.  Rambo,  485. 

Wright  V.  Smith,  11,  16,  83,  93,  111, 

121,  140,  158,  434,  472,  556,  620. 
Wright  V.  Suedicor,  63. 
Wright  V.  Waddell,  189,  690. 
Wright  V.  Westheimer,  166,  505. 
Wright  V.  White,  517. 
Wrigley,  Matter  of,  28,  29. 
Wrigley  v.  Geyer,  262. 
Wronipelmeier  v.  Moses,  47. 
AVyatt  V.  Barwell,  578. 
AVyatt  V.  Stuckley,  669. 
Wyatt's  Adm'r  v.  Rambo,  359. 
Wyeth,  etc.,  Co.  v.  Lang,  509,  510. 
Wylie  V.  Grundysen,  495. 
Wyman  v.  Hallack,  522. 
Wymau  v.  Hichborn,  264. 
Wyman  v.  Matthews,  468. 
Wyman  v.  Russell,  615. 
Wyman  v.  Stewart,  3,  624. 
Wyman  v.  Wilmarth,  43,  485. 
Wynn  v.  Wyatt,  464. 
Wynne  v.  Governor,  515. 
Wynne  v.  State  Bank,  375. 

Y. 

Yale  V.  Cole,  134,  135. 
Yale  V.  Hoopes,  555, 
Yale  V.  Saunders,  394, 
Yarborough  v.  Hudson,  687. 
Yarborough  v.  Thompson,  281. 
Yarborough  v.  Weaver,  541,  689,  699. 
Yarbrough  v.  Bush,  3. 
Yarnell  v.  Haddaway,  884 
Yates  V.  Dodge,  57,  569. 


Yates  V.  North,  118. 

Yazoo  R  Co.  v.  Fulton,  643,  645 

Yeatman  v.  Savings  Institution,  10, 

206. 
Yeldell  v.  Stemmons,  210,  568. 
Yelverton  v.  Burton,  355,  504,  544 
Yerby  v.  Lackland,  360. 
Yerkes  v.  McFadden,  245. 
Yoakam  v.  Howser,  83,  471. 
Yocum  V.  Barnes,  515. 
Yocum  V.  White,  649. 
York  V.  Sanborn,  614. 
York  V.  State,  3,  459,  470. 
Young  V.  Campbell,  607. 
Young  V.  Cooper,  57. 
Young  V.  Fowler,  249. 
Young  V.  Gregorie,  689. 
Young  V.  Gray,  134,  477. 
Young  V.  Kellar,  413. 
Young  V.  Louisville,  etc.,  R.  Co.,  500. 
Young  V.  Lynch,  71,  74. 
Young  V.  Nelson,  39,  41. 
Young  V.  Ross,  282,  454 
Young  V.  Walker,  403,  562. 
Young  V.  Young,  65,  292,  450. 
Youugblood  V.  Harris,  190. 
Younkin  v.  Collier,  269,  329. 
Yourt  V.  Hopkins,  617. 

z. 

Zacharie  v.  Bowers,  78,  253. 
Zadtik  V.  Shafer,  548. 
Zanz  V.  Stover,  339. 
Zechman  v.  Hank,  144 
Zeigenhageu  v.  Doe,  11. 
Zeilke  v.  Morgan,  503. 
Zelnicker  v.  Brigham,  73,  502,  576. 
Zerega  v.  Benoist,  36,  111,  433,  470. 
Ziegenhagen  v.  Strong,  539. 
Zimmer  v.  Davis,  290,  635. 
Zimmerman  v.  Franke,  509. 
Zinn  v.  Rice,  676. 
Zollar  v.  Jauvrin,  527. 
Zoller  v.  Grant,  180,  183. 
Zook  V.  Blough,  466. 
Zurchor  v.  Magee,  292. 
Zschocke  v.  People,  394 


ATTACHMENT  AND  GARNISHMENT. 


CHAPTER  T. 

THE  REMEDY  OUTLINED. 

I.  Definition  and  Distinctions §§  1-4 

II.  The  Suit  Against  Property 5-11 

III.  The  Right  to  Attach 12-18 

IV.  Pre-existing  Liens 19-23 

v.  Construction 23-25 

I.  Definition  and  Distinctions. 

§  1.  Tlie  jyrevalent  system. —  In  prominent  features,  nearly 
all  the  attachment  laws  of  this  country  are  alike.  There  is 
such  substantial  uniformity  that  the  theory  and  practice  under 
the  statutes  may  be  found  susceptible  of  being  treated  with 
unity  and  system. 

Attachment,  as  generally  authorized,  is  a  proceeding  to 
create  and  enforce  a  lien.  It  is  a  remedy  for  the  collection  of 
ordinary  debt  by  preliminary  levy  upon  property  of  the  debtor 
to  conserve  it  for  eventual  execution  after  the  lien  shall  have 
been  perfected  by  judgment.  The  remedy  is,  in  some  states, 
applicable  in  suits  for  torts  and  for  liquidated  debts  not  due. 

§  2.  Statutory  authorizations  of  the  remedy  for  other  pur- 
poses, such  as  the  vindication  of  pre-existing  liens,  the  recovery 
of  purchase-money  by  the  sequestration  of  specific  property, 
reparation  for  not  delivering  property  to  the  sheriff  under  or- 
der, and  all  attachments  on  unusual  grounds,  are  exceptional.^ 

The  employment  of  the  process  to  compel  the  appearance 
of  the  debtor,  or  attachment  as  distraint,  has  fallen  into  disuse ; 
it  is  almost  universally  destitute  of  statutory  warrant,  and  is 
not  in  harmony  with  the  remedy  now  prevailing. 

§  3.  Different  forms  of  the  remc(h/. —  Direct  attachment  and 
garnishment  differ  from  each  other  in  many  respects,  but  are 

1§§73-7G,  101,  102. 
1 


2  THE    REMEDY   OUTLINED.  [§§  4,  5. 

governed  by  the  same  principles  in  tlie  creation  and  enforce- 
ment of  the  lien. 

Domestic  and  foreign  attachment  are  scarcely  distinguished 
in  most  of  the  states ;  for  non-residence  is  treated  as  one  of 
the  grounds  of  attaching,  and  proceedings  upon  it  are  of  the 
same  character  as  those  on  other  grounds,  except  that  some 
statutes  make  a  difference  as  to  the  requirement  of  a  bond. 
In  a  few  states  foreign  attachment  is  in  use,  and  is  practiced 
much  as  under  the  custom  of  London.^ 

The  attaqhment  proceeding  is  ancillar}^  to  the  principal  suit 
when  considered  apart  from  it,  especially  when  separately  in- 
stituted to  aid  it.- 

§  4.  Personal  form  of  suit. —  In  form  the  suit  is  always  m 
personam.  A  summons  is  always  issued  to  the  debtor ;  the 
pleadings  are  of  a  personal  character,  and  the  judgment  is 
rendered  for  or  against  him  as  defendant.  Though  the  ob- 
ject is  to  secure  his  property  in  advance  for  eventual  execu- 
tion, yet  no  particular  property  to  be  attached  is  described  in 
the  petition  and  affidavit,  and  none  is  seized  before  the  suit ; 
nor  is  it  certain  that  any  will  be  found ;  and,  if  nothing  be 
attached,  the  suit  goes  on  to  the  end  as  a  merely  personal  ac- 
tion without  any  change  of  the  pleadings.  So,  if  something 
be  attached,  but  released  ])endente  lite.,  the  suit  goes  on  as  a 
personal  one  in  the  form  in  which  it  was  instituted. 

When  the  debtor  is  not  served  and  does  not  appear,  but  is 
notified  by  publication,  the  suit  is  against  attached  property 
only;  but  the  form  is  still  personal  from  the  beginning  to  the 
judgment  nominally  against  the  defendant,  with  privilege 
upon  the  property  attached. 

II.  The  Suit  Against  Pkopektt. 

§  5.  In  effect,  the  attachment  suit  is  always  against  prop- 
erty. Whether  the  debtor  has  been  served  or  has  appeared 
so  as  to  make  himself  a  personal  party,  or  has  been  merely 
invited  by  publication  and  has  not  responded,  the  proceeding 
by  attachment  is  to  create  a  lien  upon  the  property  attached 
and  ultimately  to  vindicate  it  by  sale  for  the  satisfaction  of 

1  Post,  %%  881,  884.  Toms  v.  Wasson.  66  N.  C.  417 ;  Marsh 

2  Luckett  V.  Rumbaugh,  45  Fed.  29  ;    v.  Williams,  03  N.  C.  371. 


6.] 


THE    SUIT   AGAINST   PKOPERTY. 


the  debt.  The  jurisdiction  is  over  the  res  attached  and  not 
over  its  unserved  and  non-appearing  owner,  though  it  is  over 
both  when  both  are  in  court.  Yet,  with  both  present,  the 
attachment  has  to  do  with  the  property;  the  lien,  perfected 
by  judgment,  rests  on  that  only ;  so,  whether  the  debtor  be 
in  court  or  not,  if  the  property  is  there,  and  he  has  been  ten- 
dered his  day  in  court,  the  attachment  suit  is,  in  efifect,  a  pro- 
ceeding in  rem} 

%  6,  Effect  of  judgment — That,  under  such  circumstances, 
the  suit  is  a  property  action,  appears  from  the  rule  that  the 
record  of 'the  case  is  not  admissible  in  any  other  cause  pend- 
ing against  the  debtor  though  it  may  be  adduced  in  a  proceed- 
ing against  the  property  It  is  definitely  settled  that  when 
something  is  attached,  if  the  debtor-ownei-,  notified  by  publica- 
tion, does  not  come  into  court,  the  only  effect  of  a  judgment 
sustaining  the  attachment  is  to  subject  the  property  to  the 
payment  of  the  creditor's  demand.- 


1  Stanley  v.  Stanley,  35  S.  C.  94; 
Davis  V.  Megroz  (N.  J.),  26  A.  1009 ; 
Miller  v.  Dungan,  36  N.  J.  L.  21; 
Thompson  v.  Eastburn,  16  N,  J.  L. 
100;  Huber  v.  Abbott,  39  La.  Ann. 
1112 ;  Churchill  v.  Goldsmith,  64  Mich. 
250.  (See  York  v.  State,  73  Tex.  651.) 
Comer  v.  Reid,  93  Ala.  392 ;  Ladiga 
Mill  Co.  V.  Smith,  78  Ala.  108;  Watts 
V.  Rice,  75  Ala.  289;  Yarbrough  v. 
Bush,  69  Ala.  170;  Haralson  v.  Camp- 
bell, 63  Ala.  278 ;  McCoy  v.  Watson, 
51  Ala.  466 ;  Wyman  v.  Stewart,  42 
Ala.  163;  Cousins  v.  Alworth,  44 
Minn.  507;  Feikert  v.  Wilson.  38 
Minn.  434.  {See  Barber  v.  Morris, 
37  Minn.  194;  Kenney  v.  Georgen, 
36  Minn.  190.)  Compare  Cleland  v. 
Tavernier,  11  Minn.  126  [194];  Stone 
u  Myers,  9  Minn.  287  [303] ;  Fergu- 
son V.  Crawford,  70  N.  Y.  253.  See 
Wolf  V.  Cook,  40  Fed.  437 ;  Insurance 
Co.  V.  Wagei-,  35  Fed.  364. 

2  Cooley's  Const.  Lim.  (6th  ed.)  498 ; 
Pennoyer  v.  Neflf,  95  U.  S.  731,  734 ; 
St  Clair  v.  Cox,  106  U.  S.  350 ;  Cooper 
V.  Reynolds,  10  Wall.  308 ;  Harris  v. 
Hardeman,  14  How.  (U.  S.)  334,  340 ; 


Fitzpatrick  v.  Flannagan,  106  D".  S. 
648;  Pancoast  v.  Washington,  5  Cr. 
(C.  C.)  507;  Westervelt  v.  Lewis  & 
Tooker,  2  McLean,  511, 514 ;  Robinson 
V.  Nat.  Bank,  81  N.  Y.  393 ;  McKinney 
V.  Collins,  88  N.  Y.  216;  Jones  v. 
Gresham,  6  Blackf.  291;  Kilbourne 
V.  Woodworth,  5  Johns.  (N.  Y.)  37; 
Matter  of  Faulkner,  4  Hill,  598 ;  Fitz- 
simraons  v.  Marks,  66  Barb.  333 ;  Force 
V.  Gower,  23  How.  Pr.  294;  Fisher 
V.  Lane,  3  Wils.  297 ;  Coleman's  Ap- 
peal, 75  Pa.  St.  441 ;  Jackson  v.  Bank 
of  the  United  States,  10  Pa.  St.  61; 
Phelps  V.  Holker,  1  Dall.  (Pa.)  261: 
Fitch  V.  Ross.  4  S.  &  R.  557 ;  Downer 
V.  Shaw,  2  Fos.  277 ;  Miller  v.  Dun- 
gan, 36  N.  J.  L.  21 ;  Field  v.  Dortch. 
34  Ark.  399;  Myers  v.  Smith,  29 
Ohio  St.  125 ;  Egan  v.  Lumsden,  2 
Disney  (O.),  168 ;  Wells  v.  Detroit,  2 
Doug.  (Mich.)  77,  79;  Greenvault  v. 
F.  &  M.  Bank,  id.  498,  508 ;  Buckley 
V.  Lowry,  2  Mich.  418;  Matthews  v. 
Densmore,  43  Mich.  461 ;  Van  Nor- 
man V.  Judge  of  Jackson  Circuit,  45 
id.  204;  Bower  v.  Town,  12  Mich. 
233 ;  Woolkins  v.  Raid,  49  Mich.  299 ; 


THE    EEMEDY    OUTLINED. 


r§§  '^,  8. 


§  Y.  It  has  been  said  that  if  property  is  attached  and  publi- 
cation made,  the  defendant  is  thereby  brought  into  court  for 
all  purposes  except  the  rendition  of  a  personal  judgment 
ag-ainst  him.  This  is  self-contradictorv ;  for,  if  not  in  court 
so  as  to  be  liable  to  a  personal  judgment,  he  cannot  be  there 
for  any  purpose  whatever,  unless  he  has  made  a  special  ap- 
pearance. If,  under  such  circumstances,  judgment  can  be 
rendered  only  in  effect  against  the  property  attached,  for 
what  conceivable  purpose  may  the  unserved  and  non-appearing 
debtor  be  deemed  in  court  by  virtue  of  the  publication?^ 

§  8.  Debtor  and  Ms  projyerty,  in  court — Attachment  is  said 
to  be  an  incident  of  the  personal  action  when  both  the  debtor 
and  the  property  are  in  court.-  It  is  auxiliary  to  it.'  It  may 
disappear  from  the  suit  by  the  quashing  of  the  writ,  while 
the  action  against  the  debtor  himself  may  go  on  and  be  pros- 
ecuted to  judgment.* 

Though    attachment  be  not  incidental  or  auxiliary  in  the 

Chamberlain  v.  Faris,  1  Mo.  517; 
Massey  v.  Scott,  49  Mo.  278 ;  Erwin 
V.  Heath,  50  Miss.  795 ;  Myers  v.  Far- 
rell,  47  Miss.  281 ;  Bates  v.  Crow,  57 
Miss.  676,  678 ;  People  v.  Cameron,  7 
111.  468 ;  Clymore  v.  Williams,  77  111. 
618;  Hobson  v.  Emporium  Real  Es- 
tate &  Manf.  Co.,  42  111.  306;  Con- 
well  V.  Thompson,  50  id.  330 ;  Rowley 
V.  Berrian,  12  111.  198,  202 ;  Banta  v. 
Wood,  32  Iowa,  469;  Doolittle  v. 
Shelton,  1  Greene  (Iowa),  272 ;  Wilkie 
V.  Jones,  1  Morr.  (Iowa),  97;  May- 
field  V.  Bennett,  48  Iowa,  194 ;  Shir- 
ley V.  Byrnes,  34  Tex.  625 ;  Green  v. 
Hill,  4  Tex.  465;  Hunt  v.  Norris,  3 
jNIartin  (La.),  527 ;  Epstein  v.  Salorgne, 
6  Mo.  App.  352.  (See  Mosher  v.  Bar- 
tholow,  id.  598.) 

1  An  isolated  paragraph  in  King  v. 
Vance,  46  Ind.  246,  which  is  com- 
pletely overborne  by  the  body  of  the 
decision,  seems  to  have  led  to  error 
in  this  respect.  In  Cheatham  v.  Trot- 
ter, Peck,  198,  it  is  said  that  if  at- 
tachment is  levied  on  the  property 
of  a  debtor,  he  is  before  the  court 
and  judgment  may  be  taken  against 


him  if  he  does  not  appear.  See  Ter- 
vill  V.  Rogers,  3  Hay  w.  (Tenn.)  203 ; 
Mitcliell  V.  Sutherland,  74  Me.  100. 
But  it  is  settled  that  nothing  more 
than  a  nominal  personal  judgment 
can  be  rendered  under  such  cir- 
cumstances, and  that  execution  is 
confined  to  the  property  attached. 
King  V.  Vance,  46  Ind.  246 ;  Miller  v. 
Dungan,  36  N.  J.  L.  21;  Clymore  v. 
Williams,  77  111.  618 ;  Bates  v.  Crow, 
57  Miss.  676,  678;  Fitzsimmons  v. 
Marks,  66  Barb.  333;  Kilburn  v. 
Woodworth,  5  Johns.  37;  Epstein 
V.  Salorgne,  6  Mo.  App.  352 ;  Banta  v. 
Wood,  32  Iowa,  469. 

2  Cooper  V.  Reynolds,  10  Wall.  308. 

3  Bivens  v.  Mathews,  7  Bax.  256 ; 
McComb  V.  Allen,  82  N.  Y.  114;  Par- 
sons V.  Paine,  26  Ark.  124 ;  Maxwell 
V.  Stewart,  22  Wall.  77. 

4  Fitzpatrick  v.  Flannegan,  106  U. 
S.  650 ;  Buudrem  v.  Denn,  25  Kan. 
430;  Bates  v.  Crow,  57  Miss.  676; 
Parker  v.  Brady,  56  Ga.  372 ;  Erwin 
V.  Heath,  50  Miss.  795 ;  Bayersdorfer 
V.  Hart,  12  Phila.  192. 


9.] 


THE    SUIT   AGAINST   PROPERTY. 


first  stage  of  a  suit,  when  the  notified  defendant  has  not  re- 
sponded as  a  party,  it  becomes  so  upon  his  appearance,  and 
yet  retains  its  character  as  a  proceeding  against  property. 
Land  being  attached,  the  debtor  subsequently  appeared,  and 
it  was  held  that  the  suit  continued  in  rem  as  to  the  land,  but 
in  personam  as  to  him.^ 

§  9.  Ducdit}/. —  The  suit,  considered  as  a  whole,  is  dual  when 
biDth  the  defendant  and  his  property  are  in  court  j^  for  the 
personal  action  may  be  prosecuted  to  judgment  though  the 
attachment  be  dismissed.^  And  in  an  appellate  court  the  per- 
sonal judgment  may  be  affirmed,  yet  the  judgment  sustain- 
ing the  attachment  may  be  reversed.* 

Property,  attached  in  the  hands  of  a  garnishee,  is  held  by 
him  as  a  keeper,  subject  to  the  order  of  the  court.  The  pro- 
ceeding against  him  is  personal,^  while  that  against  the  thing 
attached  in  his  hands  is  not.''  The  latter  is  essential  to  the 
existence  of  the  principal  suit  when  the  principal  debtor  is  not 
in  court. 


1  Connelly  v.  Lerche  (N.  J.  L.),  28 
A.  430:  Davis  v.  Megroz  (N.  J.  L.), 
26  A.  1009 ;  Jackson  v.  Johnson,  51 
N.  J.  L.  4G1 ;  Thompson  v.  Eastburn, 
16  N.  J.  L.  100. 

2  Bates  V.  Crow,  57  Miss.  676,  678; 
Bundreni  v.  Denn,  25  Kan.  430; 
Grubbs  v.  Colter,  7  Bax.  432 ;  Bivens 
V.  Matthews,  7  id.  256;  Walker  v. 
Cottrell.  6  id.  257. 

3Sharpless  v.  Zeigler,  92  Pa.  St 
467 ;  White  v.  Theilens,  106  Pa.  St. 
173 ;  Biddle  v.  Black,  99  Pa.  St.  380 ; 
Brenner  v.  Moyer,  98  Pa.  St.  274; 
Jaffray  v.  Wolfe  (Ok.),  33  P.  944; 
Hendrix  v.  Cawlhorn,  71  Ga.  742; 
Ga.  Code,  ^^  3309,  3319,  3328 ;  Buice 
V.  Mining  Co.,  64  Ga.  769;  Light  v. 
Isear,  28  S.  C.  440 ;  Myers  v.  Smith, 
29  Ohio  St.  120 ;  Eddy  v.  Moore,  23 
Kan.  113;  Hill  v.  Harding,  93  IlL 
77 ;  Phillips  v.  Hines,  33  Miss.  163 ; 
Irvin  V.  Howard,  37  Ga.  18;  Shirley 
V.  Byrnes,  34  Tex.  625;  Love  v. 
Voorhies,  13  La.  Ann.  549;  Gillispie 


V.  Clark,  1  Tenn.  2 ;  Hills  v.  Moore, 
40  Mich.  210 ;  Epstein  v.  Salorgue,  6 
Mo.  App.  352 ;  Wolf  v.  Styx,  99  U.  S. 
1 ;  Buckingham  v.  Swezy,  61  How. 
Pr.  266 ;  McCombs  v.  Allen,  82  N.  Y. 
114;  Scanlon  v.  O'Brien,  21  Minn. 
434 ;  Dierolf  v.  Winterfield,  24  Wis. 
143 ;  Miller  v.  Ewing,  8  S.  &  M.  421 ; 
Harris  v.  Gwin,  10  id.  563 ;  Jones  v. 
Hunter,  4  How.  (Miss.)  342 ;  Hender- 
son V.  Hamer,  5  id.  525 ;  Lester  v. 
Watkins,  41  Miss.  647 ;  Bishop  v. 
Fennert}',  46  id.  570;  Holman  v. 
Fisher,  49  id.  472 ;  Erwin  v.  Heath, 
50  id.  795. 

*  Fitzpatrick  v.  Flannagan,  106  U.  S. 
648,  660. 

6  Coda  V.  Thompson  (W.  Va.),  19 
S.  E.  548;  Middleton  Paper  Co.  v. 
Rock  River  Paper  Co.,  19  Fed.  252. 

6  Connor  v.  Pope,  J8  Mo.  App.  89 ; 
Webster  Wagon  Co.  v.  Peterson,  27 
W.  Va.  314 ;  Buschman  v.  Hauua,  73 
Md.  1 ;  18  A.  962. 


6  THE    KEMEDY    OUTLINED.  [§§  10,  11. 

If  the  garnishee  holds  no  property  of  the  defendant  but 
owes  him  a  debt,  the  service  of  process  upon  him,  with  notice 
to  the  defendant,  will  not  enable  the  garnishor  to  follow  into 
third  hands  the  money  with  which  the  garnishee  may  have 
paid  the  debt  after  service;  there  is  no  lien  upon  the  money, 
as  it  is  not  attached  as  a  special  deposit.^  The  garnishee, 
however,  would  be  personally  liable. 

§  10.  Limited  effect —  Attachment  is  not  a  general  proceed- 
ing binding  upon  all  the  world,  but  a  limited  one,  confined 
to  the  interest  of  the  debtor.-  The  former  is  conducted  ir- 
respective of  the  owners  of  the  things  seized :  the  latter  only 
with  reference  to  the  interest  of  the  debtor ;  in  the  former 
the  notice  or  monition  is  general:  in  the  latter  it  is  limited  to 
the  debtor;  in  the  former,  all  persons  interested  must  appear 
and  assert  their  rights  or  they  will  be  forever  concluded  by 
the  decree  against  the  property:  in  the  latter,  they  need  not 
appear  (except  the  notified  debtor),  and  they  cannot  be  de- 
faulted, or  affected  by  a  final  decree  subjecting  the  property 
to  pay. 

§  11.  The  criterion. —  If  the  universality  of  the  judgment- 
obligation  were  the  criterion  by  which  to  judge  whether  a  suit 
is  against  a  thing  or  not,  all  actions  belonging  to  the  second 
class  mentioned,  including  attachment  suits,  would  be  ruled 
out.  It  has  often  been  made  the  criterion,  because  courts 
have  had  in  mind  proceedings  with  general  notice,  and  have 
thought  that  all  suits  must  conform  to  them  in  the  feature  of 
universal  conclusiveness  to  be  entitled  to  the  designation  of 
proceedings  against  things.  And,  where  this  feature  has  ap- 
peared, they  have  accepted  the  proceeding  as  one  against  a 
thing  even  when  it  has  been  to  declare  personal  status.  In 
illustration,  may  be  mentioned  the  judicial  recognition  or  ap- 
pointment of  an  administrator,  executor  or  guardian.^  Orders 
making  such  appointments  have  some  reference  to  property, 
it  is  true;  but  they  do  not  differ  from  like  orders  in  which  no 
property  is  concerned,  such  as  those  fixing  the  statics  of  a 

1  Hulley  V.  Chedic  (Nev.),  36  P.  783.    Wis.  671 ;  Wendel  v.  Durbiu,  26  Wis. 

2  First  N.  Bank  v.  Greenwood,  79    390 ;  Meyer  v.  Gage,  65  la.  606. 
Wis.    281 ;  Thomas  v.   Richards,   09        » Farrar  v.  Ohustead,  24  Vt.  123. 


I  11.  THE    SUIT   AGAINST   PROPERTY.  7 

pauper,^  emancipating  a  minor,  naturalizing  a  foreigner,^  etc., 
which,  by  the  same  criterion,  have  been  also  held  to  be  in  rein, 
though  no  property  whatever  is  involved. 

There  is  a  class  of  orders  which,  b}^  this  criterion,  have  been 
put  with  proceedings  against  things,  though  the  orders  have 
but  a  slight  relation  to  property,  and  cannot  properly  be  said 
to  be  against  it;  such  as  those  discharging  a  bankrupt,^  settling 
the  accounts  of  an  administrator  or  executor,*  granting  letters 
of  administration,^  probating  wills,^  etc.  These,  like  a  judg- 
ment fixing  the  status  of  an  applicant  for  divorce,^  resemble 
decrees,  of  the  general  character  above  mentioned,  against 
property,  in  the  feature  of  universal  conclusiveness,  and  are, 
in  that  respect,  as  */"  against  things,  though  there  really  is  no 
res  involved.  The  courts  do  not  claim  for  them  any  other 
feature  of  the  action  distinctively  against  property.^  They 
are  in  lyersonawo  but  quasi  in  rem. 

While,  on  the  other  hand,  orders  fixing  the  status  of  per- 
sons have  thus  been  treated  as  proceedings  against  things  by 
reason  of  their  universal  obligation,  attachment  suits  have 
been  denied  that  character  because  binding  only  upon  parties 
and  privies.'' 

1  Regina  v.  Hartington,  4  Ellis  &  Seld.  190 ;  Holliday  v.  Ward,  7  Harris, 

Bl.  780 ;  Regiua  u  Wye,  Adolph.  &  E.  485 ;  Lovett  v.  Matthews,  12  id.  338 ; 

761.  Shinn    v.    Holmes,    1    Casey,    142; 

2McCartliy  v.  Marsh,  1  Selden,  263;  Hodges  v.   Baneham.   8  Yerg.   186; 

The  State  v.  Penny,  5  Eng.  621.  Box  v.  Lawrence,  14  Tex.  345;  Her- 

SLiverinoreu.  Swasey,  7  Mass.  213;  bert  v.  Haurick,  16  Ala.  581;  Wills 

In  re  Bellows,  3  Story,  128 ;  Dery  v.  v.  Sprague,  3  Gratt.  355 ;  Judson  v. 

McHenry,  29  Me.  206.  Lake,  3  Day,  318. 

*Tibbetts  v.  Tilton,  4  Foster,  120;  9  Ma  gee  v.  Beirne,  39  Pa.  St.  62: 

Bryant  u  Allen,  6  N.  H.  116;  Clark  "Thejudgment  concludes  parties  and 

V.  Callaghan,  2  Watts,  259.  privies,  but  not  strangers.     It  is  not 

5  Lawi-ence  t'.  Englesby,  24  Vt.  42;  true  of  a  judgment  in  attachment 
Stein  V.  Bennett,  24  Vt.  303;  Ryland  thatit  authorizes  the  plaintiff  to  seize 
V.  Green,  14  S.  &  M.  194.  a  thh-d  party's  property  for  the  de- 

6  Woodruff  V.  Taylor,  20  Vt.  65.  fendant's  debt.  In  2  Smith's  L.  C, 
'§§  60S,  609.  Am.  Ed.,  p.  689  et  seq.,  the  cases  on 
8  Eunis    V.   Smith,    14    How.   400 ;     this  head  will  be  found  collected,  and 

Dublin    V.  Chadburn,  16  Mass.  433;  their  result  stated  to  be  that,  properly 

Laughton    v.    Atkins,    1   Pick.    535 ;  speaking,  proceedings  by  attachment 

Osgood  V.  Breed.  12  Mass.  525;  Peters  are  not  in  rem,  but  are  rather  pro- 

V.  The  AVarren  Ins.  Co.,  3  Sum.  389 ;  ceedings  against  the  interest  of  the 

Dickinson    v.    Hayes,    31     Ct.    417;  defendant  and  those  claiming  under 

Sheimer's    Appeal,   8   Wright,   396:  him   in   the  thing   attached."    And 

Vanderford    v.   Van   Valkenberg,   2  there  are  other  cases,  upon  this  and 


8  THE    KEMEDY    OUTLINED.  [g  12. 

Certain  probate  proceedings  are  against  the  property  of 
the  decedent,  which  is  an  indebted  thing;  and  they  belong 
to  the  same  class  with  attachments,  since  condemnation  and 
sale  follow  limited  notice,  and  the  whole  world  is  not  con- 
cluded by  the  result.^  They  are  not  formally  against  prop- 
erty but  are  so  in  effect.  Though,  like  attachments,  they 
resemble  personal  actions,  and  are,  in  the  characteristic  men- 
tioned, as  if  against  persons,  they  are  reallj^  in  rem  and  only 
(juasi  in  personam. 

III.  The  Right  to  Attach. 

§  12.  Creation  of  the  lien. — As  there  can  be  no  action  in  rem 
without  a /w*  in  re  or  ad  rem^  how  can  the  creditor  attach  to 
secure  ordinary  debt?  If  it  be  answered  that  the  law  author- 
izes him  to  do  so,  there  comes  the  further  question,  how  can 
the  legislator  create  for  him  a  right  in  a  thing  to  be  enforced 
as  a  lien  upon  it?  Such  right  can  no  more  be  bestowed  di- 
rectly by  the  state  than  the  transfer  of  property  from  one  to 
another  person  can  be  made  arbitrarily  by  it.  But  it  may 
provide  that  the  right  or  lien  shall  arise,  by  operation  of  law, 
upon  the  happening  of  certain  conditions.  Let  us  see  what 
circumstances  and  what  reasons  justify  such  legislation. 

like  reasons,  in  which  the  same  re-  stituted  by  petition   or  pubUcation, 

suit  is  reached.     Eaton  v.  Pennywit,  without  any  direct  or  personal  serv- 

25  Ark.  144;  Walker  v.   Cottrell,  6  ice  of   process,  and    are   sometimes 

Bax.  257 ;  Ingle  v.  McCurry,  1  Heis.  described  as  proceedings  in  rem;  and 

26 ;  Houston  v.  McCluney,  8  W.  Va.  there  can  be  no  doubt  that  the  order 

135 ;     Rhode     Island    Trust    Co.    v.  or  decree  in  such  eases  will  be  con- 

Keeney  (N.  D.),  48  N.  W.  341.  elusive  as  regards    every  one   who 

1  Because  probate  decrees  against  claims  title  by  descent  from  the  an- 

things  are  not  res  adjiidicata  quoad  cestor,  whether  he  is  or  is  not  actually 

omnes,  the  proceedings  have  been  ex-  before  the  court.     Benson  v.  Cilly,  8 

eluded  from  classification  with  pro-  Ohio,  N.  S.  604.     But  the  substantial 

ceedings  in  rem,  being  tested  by  the  difference  between  such  an  order  and 

wrong    criterion    above   mentioned,  a  true  judgment  in  rem  is,  that  the 

In  2  Smith's  L.  C,  p.  691,  it  is  said :  estoppel  is  limited  to  the  parties  and 

"The   proceedings  which    are    very  privies,  and  will  not  be  binding  even 

generally  in  use  in  the  probate  and  on  them,  unless  they  had  actual  or 

orplians'  courts  of  this  country,  for  constructive  notice  in  the  manner 

the  sale  of  the  real  estate  of  an  an-  prescribed  by  statute."    As  notice  is 

cestor  for  the  payment  of  liis  debts,  necessary  in  both  classes  of  proceed- 

or  for  the  purpose  of  facilitating  or  ings  above  mentioned,  the  argument 

affecting  a  partition  or  di.stril)ution  drawn  from  the  law  of  estoppel  seems 

among  his  heirs,  are  commonly  in-  untenable. 


§§  13-lG.]  THE    KIGHT    TO    ATTACH.  9 

§  13.  Liability  of  in'operUj. —  Credit  is  given  usually  with 
reference  to  the  debtor's  property  enabling  him  to  pay.  Upon 
his  death,  either  natural  or  civil,  his  property  becomes  liable 
for  the  debt.  The  principle  upon  which  the  legislator  author- 
izes proceedings  against  the  property  of  a  decedent  or  a  bank- 
rupt, is  the  same  as  that  upon  which  the  attachment  of  the 
property  of  a  non-resident,  absconding,  concealed,  or  fraudu- 
lent debtor,  is  based.  The  principle  is  that  property  is  liable 
for  its  owner's  debts,  though  he  be  beyond  the  reach  of  ordi- 
nary process  or  so  circumstanced  that  it  cannot  prove  effectual. 

§  14.  Operation  of  law. — The  state  cannot  step  between  con- 
tracting parties  and  create  a  lien  when  they  have  made  none, 
but  it  can  so  legislate  that  a  lien  will  arise  by  operation  of  law 
upon  the  occurrence  of  a  designated  state  of  things.  Debts 
are  contracted  with  knowledge  that  when  ordinary  process 
shall  be  inadequate,  the  extraordinary  may  be  employed  and 
a  lien  created.  The  debtor  gives  occasion,  by  his  acts  or 
omissions,  for  the  creditor  to  avail  himself  of  the  statutory 
provision.  There  is  therefore  nothing  arbitrary  in  the  crea- 
tion of  the  lien. 

§  15.  Essentials. —  The  creditor  must  make  a  showing  of 
the  existence  of  facts  bringing  his  claim  within  the  statute. 
Personally,  or  by  an  agent  knowing  the  facts,  he  must  make 
affidavit  to  them  This  is  essential  to  the  action;  and  the 
court's  authority  to  order  attachment  does  not  exist  without 
it.  And,  to  provide  against  any  wrong  to  the  debtor,  the 
creditor  must  give  a  bond  to  secure  him,  in  most  of  the 
states.^ 

§  16.  SpecifiG  lien. — The  creditor,  upon  compliance  with 
statute,  is  entitled  to  have  his  debt  secured  by  having  prop- 
erty of  his  debtor  seized  and  conserved  for  eventual  execu- 
tion. He  proceeds  on  the  assumption  that  he  already  has  a 
lien;  and  when  property  has  been  attached,  and  the  condi- 
tions of  the  statute  strictly  observed,  the  lien  has  all  the  force 

I  Benedict    v.    Biay,    2    Cal.    251 ;  71  Mo.  473 ;  Lawrence  v.  Hagei-man, 

Thompson  v.  Arthur,  Dudley  (Ga.),  56  III  68.     It  is   held   that  attach- 

253;  Cousins  v.  Brashier,  1  Blackf.  ment  by  the  state  without  bond  or 

85 ;  Ford  v.  Woodward,  10  Miss.  260 ;  affidavit  may  be  authorized  without 

Briggs  V.  Smith,  13  Tex.  260:  Boat-  violation  of  the  constitution.     Mac- 

wright  V.  Stewart,  37  Ark.  61-4 ;  Dent  douald.  Ex  parte,  76  Ala.  603. 
V.  Smith,  53  Iowa,  262  :  Clark  v.  Brotr, 


10  THE    REMEDY    OUTLINED.  [§  17. 

of  a  mortgage  or  other  conventional  lien.  It  rests  upon  par- 
ticular property,  and  is,  from  the  moment  of  its  creation,  a 
specific  lien.^ 

The  lien  which  the  creditor  assumes  to  have  is  hypothetical  — 
dependent  upon  the  contingency  that  it  be  established  by 
judgment.-     It  is  not  certain,  like  the  lien  of  an  execution.' 

It  may  be  abandoned  by  the  creditor's  dismissal  of  his  at- 
tachment. He  may  resort  to  a  different  remedy;  for  his 
election  of  this  does  not  estop  him  from  employing  another 
form  of  action  after  its  discontinuance.^  He  may  release  part 
of  the  property  attached  without  affecting  his  inchoate  lien 
on  the  rest,  and  without  losing  his  priority  relative  to  junior 
attach  ers.^ 

§  17.  Retroaction. —  By  the  law  of  relation,  an  attachment 
judgment  retroacts  to  the  time  the  property  was  first  at- 
tached ;  ^  to  the  time  it  was  first  subjected  to  garnishment ; 
so  that  no  incumbrances  put  upon  it  by  its  owner  since  that 
time  can  have  higher  rank  than  the  attaching  creditor's  lien. 
Such  retroaction  makes  the  lien  perfect  from  its  first  incep- 
tion as  though  created  by  the  contract  of  the  parties;  as 

1  Smith  V.  Bradstreet,  16  Pick.  264 ;  Appeal,  14  Pa.  St.  326 ;  Hoag  v.  How- 
Van  Loan  V.  Kline,  10  Johns.  129 ;  ard,  55  Cal.  564 ;  Chandler  v.  Dyer, 
Bates  V.  Ploiisky,  28  Hun,  112;  Scar-  37  Vt.  345;  Vincent  v.  Huddleston, 
borough  V.  Malone,  67  Ala.  570 ;  Hurt  Cooke  (Tenu.),  254 ;  Ward  v.  McKen- 
V.  Redd,  64  id.  85 ;  Carey  v.  Gregg,  3  zie,  33  Tex.  297 ;  Harrison  v.  Trader, 
Stew.  433;  Hervey  v.  Champion,  11  29  Ark.  85;  Trellson  v.  Green,  19  id. 
Humph.  569 ;  Moore  v.  Fedawa,  13  376 ;  Desha  v.  Baker,  3  id.  509 ;  Moore 
Neb.  379;  Berryman  v.  Stern,  14  v.  Holt,  10  Gratt.  284;  Erskiue  v. 
Nev.  415;  Moresi  v.  Swift,  15  Nev.  Staley,  12  Leigh,  406. 
215;  Yeatman  v.  Savings  Institu-  2  Cooke  r.  Cooke.  43  Md.  523 ;  Ten- 
tion,  95  U.  S.  764;  Peck  v.  Webber,  7  nant  v.  Battey,  18  Kan.  324;  Avery 
How.  -(Miss.)  658 ;  Saunders  v.  Co-  v.  Stephens,  48  Mich.  246 ;  Fuller  v. 
lumbus  Life  Ins.  Co.,  43  Miss.  583 ;  Hasbrouk,  46  Mich.  78. 
McBride  u  Harn,  48  Iowa,  151 ;  Peo-  3  McEachin  v.  Reed,  40  Ala,  410; 
pie  V.  Cameron,  7  111.  468 ;  Worcester  Lamar  v.  Gunter,  37  Ala.  324. 
National  Bank  v.  Cheeney,  87  111.  ^  Johnson  v.  Central  Bank,  116  Mo. 
602 ;  Liebman  v.  Ashbacker,  36  Ohio  558. 

St.  94;    Patch  v.  Wessels,  45  Mich.  5  Daggett  v.  Wimer,    54  Mo.   Ap. 

249;  Greely  v.  Reading,  74  Mo.  309;  125. 

Chandler  v.  Dyer,  37  Vt.  345 ;  Metts  ^  Bates  v.   Plousky,   62  How.   Pr. 

V.  Ins.  Co.,  17  S.  C.  120;   Goore  v.  429;    Avery   v.   Stephens,   48  Mich. 

McDaniel,  1  McCord  (S.  C),  480 ;  Car-  246 ;  Scarborough  v.  Malone,  67  Ala. 

ter  r.  Champion,  8  Ct.  549;  Daven-  570;  Field  v.  Dortch,  34  Ark.  899; 

port  V.  Lacon,  17  id.  2i8;  Adler  v.  Hill  v.  Baker,  32  Iowa,  302. 
Roth,  2  McCrary,  445;  Schacklett's 


§  18.]  THE    RIGHT    TO    ATTACH,  11 

though  it  were  a  mortgage  lien  voluntarily  put  upon  the 
property  by  the  defendant  himself.  On  the  contrary,  in  case 
of  final  judgment  for  the  defendant,  there  never  has  been  any 
lien  whatever;^  his  subsequently  created  incumbrances,  mort- 
gages or  voluntarily-bestowed  liens  of  any  sort  are  perfectly 
good,  and  the  plaintiff's  claim  has  never  been  more  than  an 
ordinary  one.  Even  if  the  attachment  has  been  dissolved  for 
irregularities,  and  the  defendant  still  remains  the  debtor  of 
the  plaintiff,  he  is  but  an  ordinary  debtor,  and  has  been  noth- 
ing more  since  the  inception  of  the  suit.  AVith  such  result, 
the  contingent  lien  is  seen  to  have  been  no  lien  at  all;  so  that, 
if,  pending  the  suit,  the  garnishee  had  paid  his  debt  to  the 
defendant,  or  delivered  property  to  the  defendant,  he  would 
have  disturbed  no  lien,  and  would  not  now  be  liable  to  the 
plaintiff. 

§  18.  The  retroaction  is  not  to  the  date  of  the  institution  of 
the  suit ;  not  to  the  date  of  the  affidavit  or  other  preliminary 
showing ;  not  to  the  issue  of  the  process  (except  in  a  few  states), 
but  generally  to  the  exact  time  when  property  was  reached 
by  direct  attachment,-  or  by  service  of  garnishment  upon  a 
third  person  who  really  has  property  of  the  defendant  in  pos- 
session subject  to  execution  in  case  the  judgment  sought  should 
be  obtained,  or  who  owes  the  defendant  a  debt  subject  to  col- 
lection by  the  attaching  creditor  after  such  judgment  shall 
have  been  obtained.*  The  garnishee's  affirmative  answer  to 
the  question  whether  he  has  money  or  goods  of  the  defendant 
may  be  made  after  this  date,  but  the  retroaction  of  the  judg- 

1  Suydam  et  al.  v.  Huggeford,  23  §  404,  though  that  sectioii  does  not 
Pick.  465,  470;  Clapp  v.  Bell,  4  Mass.  seem  to  warrant  very  pointedly  such 
99 ;  Johnson  v.  Edson,  2  Aikens,  299 ;  construction.  Formerly,  the  doc- 
O'Connor  V.  Blake,  29  Cal.  312 ;  Lamb  trine  was  that  the  retroaction  was 
V.  Belden,  16  Ark.  539 ;  Hale  v.  Cum-  only  to  the  time  of  the  levy ;  so  that 
mings,  3  Ala.  398.  there  was  no  prior  lien.     Merrick  v. 

nicBride  v.  Ham,  48  Iowa,  151;  Hutt  15  Ark.  343;  Lamb  u.  Belden,  IG 

Wright  r.  Smith,  11  Neb.  341.  Arkan-  id.  539;  Frellson  v.  Green,  19  id.  376. 

sas  may  bo  now  ranked  among  the  3  Fitch  i".  Waite,  5  Conn.  11;  Gates 

exceptional  states    in    this    respect  v.  Bushnell,  9  id.  530 ;  Sewell  v.  Sav- 

(Bergman  v.  Sells,  39  Ark.  97),  so  far  age,   1   B.   Monroe,   260 ;     Nutter  v. 

as  direct  attachment  is  concerned,  Connett,  3  id.  199;   Zeigenhagen  v. 

though  not  when  there  is  attachment  Doe,  1  Ind.  296 ;  Tafts  v.  Manlove,  14 

in  the  hands  of  third  jiersons  by  pro-  Cal.  47;  Kuhn  v.  Graves.  9  la.  303; 

cess  of  garnishment.     This  has  been  Stockley  v.  Wadman,  1  Hous.  (Del.) 

held  in  exposition   of  Gantt's  Dig.,  350;     Pond  v.  Griffin,   1    Ala.  678; 


12 


THE    REMEDY    OUTLINED. 


[§18. 


ment  is  not  to  the  time  of  answering  but  to  the  time  of 
service.  From  the  moment  of  service  the  lien  is  perfect  — 
jDrovided  judgment  recognizing  the  lien  shall  follow.^  From 
that  moment  the  lien  is  nothing  —  provided  no  such  judgment 
shall  follow.  The  garnishee  cannot  know  the  future  contin- 
gency. He  is  bound  to  hold  the  money,  or  goods,  or  indebted- 
ness, subject  to  the  order  of  court.  The  defendant  is  debarred 
from  regaining  his  attached  property  or  collecting  his  attached 
dues,  till  the  event  of  the  judgment  shall  have  shown  whether 
there  is  a  lien  or  not.  The  plaintiff  cannot  enforce  the  lien 
till  matured  by  judgment. 

If  the  lien  does  not  become  perfected  by  judgment,  the 
creditor  is  responsible  m  damages  for  his  false  assumption  of 
tlie  lien,  his  abuse  of  the  extraordinary  process  employed  and 
his  perversion  of  the  law.^ 

The  defendant  can  sell  his  attached  property,  subject  to  the 
attachment  lien.^  The  attachment  does  not  dislodge  any  ex- 
istino-  lien.^ 


Haldeman  v.  Hillsborough  &  Cin. 
R.  R.  Co.,  2  Handy,  101 ;  Crownin- 
shield  V.  Strobel,  2  Brevard,  80 ;  Rob- 
ertson V.  Forrest,  id.  466;  Bethune  v. 
Gibson,  id.  501 ;  Crocker  v.  Radcliff, 
3  id.  23 ;  McBride  v.  Harn,  48  Iowa, 
151;  Stiles  v.  Davis,  1  Black,  101: 
Kennedy  v.  Brent,  6  Cr.  187 ;  Hacker 
V.  Stevens,  4  McL.  535. 

1  Brown  u  Williams,  31  Me.  403; 
Wilson  V.  Forsyth,  24  Barbour,  105 ; 
Am.  Ex.  Bank  v.  Morris  C.  &  B.  Co., 
6  Hill  (N.  Y.),  362 ;  Stephen  v.  Thayer, 
2  Bay,  272 ;  Martin  v.  Dryden,  6  111. 
187;  Redus  v.  Wofford,  4  Smedes 
&  M.  579;  Tappan  v.  Harrison,  2 
Humphreys,  173;  Lackey  i'.  Seibert, 
23  Mo.  85 ;  Hannahs  v.  Felt,  15  la. 
141 ;  Cockey  v.  Melne,  16  Md.  200 ; 
Bagley  v.  Ward,  37  Cal.  121.' 

2  Hardeman  v.  Morgan,  48  Tex.  103  ; 
Lowenstein  v.  Monroe,  55  Iowa,  82 ; 
Turner  v.  Lytle,  59  Md.  199;  Ray- 
mond V.  Green,  12  Neb.  215;  Boyer 
v.  Clark,  3  Neb.  161 ;  Stevens  v.  Able, 
15  Kan.  584 ;  Read  v.  Jeffries,  16  Kan. 
534  ;  Wagiun-  v.  Stocking,  22  Ohio  St. 


297 :  Dent  v.  Smith  et  al,  53  Iowa, 
262;  Campbell  v.  Chamberlain,  10 
Iowa,  337 ;  Carey  v.  Gunnison,  51  id. 
202;  Vorse  v.  Phillipe,  37  id.  428; 
Bunt  V.  Rheum,  52  id.  619 ;  Carver  v. 
Shelley,  17  Kan.  472 ;  Nolle  v.  Thomp- 
son, 3  Met.  (Ky.)  121 ;  Smith  v.  Story, 
4  Humph.  169 ;  Spaulding  v.  Wallett, 
10  La.  Ann.  105;  Moore  v.  Willen- 
berg,  13  id.  22 ;  Accessory  Co.  v.  Mc- 
Curran,  id.  214;  McDaniel  v.  Gard-, 
ner,  34  id.  341 ;  Dickinson  v.  Maynard, 
20  id.  66 ;  Harger  v.  Spoflford,  46  Iowa, 
11 ;  Kinsey  v.  Wallace,  36  Cal.  462 ; 
Cochrane  v.  Quackenbush,  29  Minn. 
376 ;  Clark  v.  Brott,  71  Mo.  473 ;  Frank 
V.  Chaffe,  34  La.  Ann.  1203;  post, 
ch.  25. 

3Waxe  V.  Russell,  70  Ala.  174: 
Klink  V.  Kelly,  63  Barb.  622 ;  Smith 
V.  Clinton  Bridge  Co.,  13  Bradw.  572 ; 
Franklin  Ins.  Co.  v.  West,  8  Watts  & 
S.  350 ;  Stevenson  v.  Prather,  24  La. 
Ann.  434;  Ozinore  v.  Hood,  53  Ga. 
114. 

4  Meeker  v.  Wilson,  1  Gall.  419; 
Frazier  v,  Wilcox,  4  Rob.  (La.)  517 ; 


g  li>-] 


PKE-EXISTING    LIENS. 


13 


It  does  not  affect  interests  of  the  defendant  acquired  after 
the  levy.^ 

lY.  Pke-existing  Liens. 

§  19.  Conventional  liens. — "When  contracting  parties  have 
made  a  lien  enforceable  by  an  established  remedy  (such  as  a 
mortgage)  there  is  no  need  of  the  creation  and  vindication  of 
another.  Conventional  liens  are  not  enforceable  by  attach- 
ment.- If  the  creditor  has  a  rioht  hi  a  thino;  arisino-  from 
contract,  to  the  amount  of  the  debt  or  less,  he  may  have  it 
taken  from  the  debtor  and  he  may  make  his  money  out  of  it ; 
he  is  in  no  danger  of  its  being  spirited  away  before  he  can 
have  alien  matured  by  judgment;  he  has  no  occasion  to  in- 
voke an  extraordinary  remedy  to  secure  it.^  Should  he  be 
permitted  to  resort  to  attachment,  he  need  not  aver  his  con- 
ventional lien  in  his  pleadings;  he  may  as  well  abandon  it.* 
In  some  states  a  creditor  already  secured  by  lien  is  expressly 
inhibited  from  proceeding  under  the  attachment  statute  to 
recover  his  claim.^  In  all,  the  vindication  of  conventional  liens 
by  attachment  is  without  statutory  warrant. 


Tennant  r.  Watson  (Ark.),  24  S.  W. 
495. 

1  Handly  v.  Pfister,  39  Cal.  283. 

2  Thornton  v.  Wood,  42  ]Me.  282; 
Lincoln  v.  White,  30  Me.  291 ;  Smith 
V.  People's  Bank,  24  Me.  185  :  Porter 
V.  Brooks,  35  Cal.  199 ;  Van  Wyck  v. 
Bauer,  9  Abb.  Pr.  N.  S.  142.  Compare 
Harris  v.  Daugherty,  74  Tex.  1 ;  11 
S.  W.  921.  The  right  to  attach  can- 
not be  created  by  agreement.  Dogan 
V.  Cole,  G3  Miss.  153. 

3  While  an  existing  lien  is  not  dis- 
lodged by  attaching  (Caufield  v.  Mc- 
Laughlin, 10  Martin  (La.),  48 ;  DeWolf 
V.  Dearborn,  4  Pick.  466),  it  is  not 
aided  by  this  process ;  and  if  one  who 
has  the  vendor's  lien  does  not  enforce 
it  but  proceeds  by  attachment,  a  pur- 
chaser at  the  attachment  sale  cannot 
avail  himself  of  any  benefit  from 
such  lien,  Myers  v.  Paxton  (Tex.),  23 
S.  W.  284  See  Harris  v.  Tenney, 
85  Tex.   254.     No    right  to  attach- 


ment, in  aid  of  a  promissory  note 
suit,  arises  from  the  fact  that  a  mort- 
gage given  to  secure  the  note  has 
been  prescribed.  Page  v.  Latham,  63 
Cal.  75. 

*The  creditor  may  waive  his  lien 
and  attach.  Whitney  v.  Farrar, 
51  Me.  418;  Libby  u  Cushman,  29 
Me.  429;  Buck  v.  Ingersoll,  11  Met. 
226. 

5  The  creditor's  holding  collateral 
security  has  been  held  to  be  no  im- 
pediment to  his  attaching.  Taylor  v. 
Cheever,  6  Graj-,  146;  Whitwell  v. 
Brigham,  19  Pick.  117;  Cornwall  v. 
Gould,  4  Pick.  444.  Compare  Chap- 
man V.  Clough,  6  Vt.  123 ;  Cleverly  v. 
Brackott,  8  Mass.  150.  Ordinarily, 
claims  already  secured  are  not  to  be 
aided  bv  attachment.  Murphy  v. 
Montandon,  2  Idaho,  1048 ;  29  P.  851 ; 
Willman  v.  Friedman  (Idaho),  35  P. 
37. 


14  THE    REMEDY    OUTLINED.  [§§  20-22. 

§  20.  Claims  secured  collaterally. —  The  prevalent  rule  is 
that  when  the  creditor  has  security  for  his  claim,  he  cannot 
resort  to  attachment ;  but  it  has  been  held  that  he  may  do  so 
when  only  a  part  of  his  claim  is  secured.^  In  such  case,  the 
attachment  may  be  for  the  wiiole  amount  of  the  debt  sued 
upon.^  When  collaterals  given  to  secure  a  debt  have  depre- 
ciated without  the  fault  of  the  creditor  after  he  has  accepted 
them,  he  may  attach  in  California  —  but  not  if  the  security 
was  inadequate  when  taken.* 

§  21.  JExceptional  authorisations. —  Contrarj^  to  the  us;ial 
rule,  attachment  is  authorized  in  some  states  to  enforce  cer- 
tain specific  liens  designated  in  the  statutes,  and  arising  by  ^ 
operation  of  law.  In  such  suits  the  lien-bearing  property 
must  be  described  in  the  petition  and  affidavit;  or*  in  one  with 
a  reference  to  the  other.  Description  is  essential.*  For  in- 
stance, if  the  vendor  proceeds  by  attachment  to  recover  the 
purchase-money,  he  must  describe  the  property  sold,  upon 
which  his  lien  rests,^  as  w^ell  as  state  the  price  at  which  it  was 
sold.^ 

§  22.  There  are  authorizations  for  attachments,  when  the 
suit  is  for  the  recovery  of  property  ordered  by  the  court  to 
be  delivered  to  the  plaintiff,  but  which  has  been  wrongfully 
disposed  so  that  the  order  cannot  be  executed ;  when  the  suit 
is  to  enforce  a  builder's,  mechanic's  or  laborer's  lien;  when  it 
is  to  recover  for  supplies  to  a  steamboat  run  on  the  waters  of 
the  state,  etc. 

In  Maine  there  are  various  statutory  liens,  enforceable  by 
attachment,  though  the  object  is  merely  to  vindicate  the  pre- 
existing right;  such  as  the  lien  for  ship-building  materials;^ 
for  wages ;  ^  for  cut  granite,  etc. ;  ^  for  manufactured  slate,  etc.^" 

1  Branshavv  v.  Tinsley  (Tex.),  23  S.  Waxelbaum  v.  Paschel,  64  Ga.  375. 
W.  184.  See  Wicker  v.  Scofiekl,  59  Ga.  210. 

2  Porter    v.    Brooks,   35   Cal.    199;  6  Camp  w  Calm,  53  Ga.  558. 
Hower  v.   Falconer,   60  N.  H.  203 ;  "  Fuller  u  Nickerson,  69  Me.  228 ; 
Buck  V.  Ingersoll,  11  Met.  226;  Whit-  Murphy  v.  Adams,  71  Me.  113:  "log 
well  V.  Brigham,  19  Pick.  117;  Beck-  lien." 

with  V.  Sibley,  11  Pick.  482.    See  Gess-  8  Flood  v.  Randall,  72  Me.  439 ;  Hay- 

ner  v.  Palmater,  89  Cal.  89.  wood  v.  Cunningham,  id.  128. 

3  Barbieri  v.  Ramelli,  84  Cal.  154.  ^  Collins  Granite  Co.  v.  Devereux, 

4  Evans  v.  Parks  (Miss.),  13  S.  240.  72  Me.  422. 

5  Bruce    v.   Conyers,  54  Ga.   678 ;  i"  Union  Slate  Co.  v.  Tilton,  73  Me. 

207  ;  Stat.  1876,  S  90. 


§  23.]  COXSTRUCTIOX.  15 

Suits  upon  such  lions  differ  essentially  from  an  attachment 
suit  on  an  ordinary  debt  to  create  a  lien ;  yet  the  courts  hold 
that  when  such  suits  have  been  brought  "  and  the  liens  cannot 
be  upheld,  the  attachments  may  still  be  considered  valid  as 
those  of  general  attaching  creditors  not  seeking  to  enforce 
liens."  ^ 

In  Michigan,  Wisconsin  and  some  other  states,  laborers, 
who  get  out  timber  for  sawing,  have  what  is  called  a  "log 
lien,"  which  they  may  enforce  by  attachment.^  And  there 
are  liens  upon  crops  in  some  states  and  like  authorizations  to 
be  noticed  in  place. 

The  above  illustrations  are  all  exceptional  to  the  prevalent 
rule  and  practice  w'hicli  confines  the  remedy  to  ordinary 
claims,  and  denies  it  when  the  suit  is  against  specific  prop- 
erty.^ 

"V.    CoNSTRUCTIOlSr. 

§  23.  Strict. — Attachment,  considered  as  a  means  of  creat- 
ing alien  in  favor  of  an  ordinary  debtor ;  as  a  preliminary 
levy  anticipatory  of  execution  after  judgment;  as  an  innova- 
tion on  common  law,  and  as  the  means  by  which  extraordi- 
nary jurisdiction  is  acquired  and  exercised,  is  a  harsh  and 
exceptional  remedy;  and  because  it  is  such,  the  statutes  au- 
thorizing it  should  be  strictly  construed.*  The  same  rule  of 
construction  applies  to  garnishment.^ 

1  Union  Slate  Co.  v.  Tilton,  73  Me.  Great  Western,  etc.  Co.  (W.  Va.),  19 
207 ;  First  National  Bank  v.  Redman,  S.  E.  510 ;  Crim  v.  Harmon,  38  W.  Va. 
57  Me.  405 ;  Perkins  v.  Pike,  43  Me.  596 ;  Casner's  Adm'r  v.  Smith,  36  W. 
141 ;  Redington  u  Frye,  43  Me.  578.  Va.  788 ;  Claflin  v.  Steenbock,  18  Grat. 

2  Howell's  Mich.  Stat,  g§  8412-  842 ;  May  v.  Baker,  15  111.  89 ;  Moore  v. 
8427;  Woodruff  v.  Ives,  34  Mich.  Hamilton,  7  111.  429 ;  Poole  t\  Webster, 
320 ;  Shearer  v.  Anderson  (Wis.),  47  3  Met.  (Ky.)  278 ;  Haywood  v.  Collins, 
N.  W.  360.  60  111.  328 ;  Wilkie  v.  Jones,  1  Morr. 

3  Gates  V.  Bennett,  33  Ark.  475 ;  (la.)  97 ;  Musgrave  v.  Brady,  id.  456 ; 
Hodo  V.  Benecke,  11  Mo.  App.  6.  Leake  v.  Moorman,  Phill.  (N.  G.)  L. 

*Delaplaine  v.  Armstrong,  21  W.  168;  Devries  v.   Summitt,  86  N.    C. 

Va.  211;  Aultmeyer  v.  Caulfield,  37  126;  Humphrey    v.   Wood,   Wright 

W.   Va.    847 ;    U.   S.   Baking  Co.   v.  (Ohio),  566 ;  Myers  v.  Smith,  29  Ohio 

Bachman,  38  W.  Va.  84 ;  Ballard  v.  St  125 ;  Wooster  v.  McGee,    1   Tex. 

5  Crisp  V.  Fort  Wayne,  etc.  R  Co.  Co.,  50  Mich.  358;  Sievers  v.  W^heel 
(Mich.),  57  N.  W.  lOoO ;  Ford  n  Dock    Co.,  43  Mich.  275. 


16 


THE    REMEDY    OUTLINED. 


[§24. 


The  doctrine  of  strict  construction,  with  regard  to  attach- 
ments, is  confined  to  the  authorization  of  the  remedy.  There 
being  no  hiw  for  such  procedure  except  that  of  the  statute 
under  which  it  is  prosecuted,  and  the  statutory  authorization 
being  out  of  the  ordinary,  as  above  expressed,  the  doctrine 
of  strict  construction  apphes  when  the  authority  to  proceed 
is  in  question.  But  when  there  is  clearly  a  grant  of  authority, 
the  questions  which  arise  in  practice  thereunder,  such  as  those 
concerning  evideilce  and  the  like,  are  not  to  be  governed  by 
the  rule.  Even  the  statutes  themselves  will  be  liberally  con- 
strued in  the  interest  of  justice  and  against  fraud,  when  the 
authorization  of  the  remedy  is  clear.^ 

§  24.  There  is  a  marked  difference  between  the  evidence 
required  for  the  issue  of  the  writ,  and  that  for  the  mainte- 
nance of  the  attachment.  Statutes  which  authorize  the  issue 
upon  the  creditor's  oath  to  his  belief  of  the  existence  of  the 


17 ;  Marks  v.  Abraham,  53  Tex.  264 ; 
Caldwell  v.  Haley,  3  Tex.  317;  Mau- 
ley V.  Zeigler,  23  Tex.  88 ;  Bucking- 
ham t?.  Osborne,  44  Ct.  133;  Becker 
V.  Bailies,  44  Ct.  167 ;  Colt  v.  Ives,  31 
Ct.  25 ;  Montpelier,  etc.  R.  R.  Co.  v. 
Coflfrin,  52  Vt.  17 ;  Barksdale  v.  Hen- 
dree,  2  Patt.  &  H.  (Va.)  43;  Hopkirk 
V.  Bridges,  4  H.  &  M.  413 ;  McPher- 
son  17.  Suowden,  19  Md.  197;  Smith 
V.  Easton,  54  Md.  138 ;  Grace  v.  Rit- 
tenberry,  14  Ga.  232;  Waxelbaum  v. 
Paschal,  64  Ga.  275;  Metts  v.  Ins. 
Co.,  17  S.  C.  120 ;  Clausen  v.  Fultz,  13 
S.  C.  476 ;  Buckley  v.  Lowry,  2  Mich. 
418;  Van  Norman  v.  Jackson  Cir- 
cuit Judge,  45  Mich.  204 ;  Fairbanks 
V.  Bennett,  52  Mich.  61 ;  Graham  v. 
Burckhalter,  2  La.  Ann.  415 ;  Plant- 
er's Bank  v.  Byrne,  3  id.  687 ;  Wilson 
V.  Churchman,  4  id.  452 ;  Shirley  u 
Owners,  5  id.  260 ;  Stockton  v.  Dou- 
ney,  6  id.  581 ;  Boardman  v.  Glenn,  7 
id.  581 ;  New  Orleans  v.  Garland,  11 
id.  438;  Gordon  v.  Baillie,  13  id. 
473 ;  Price  u  Merritt,  id.  526 ;  Frell- 
son  V.  Stewart,  14  id.  832;  McDan- 
iel  V.  Gardner,  34  La.  Ann.  342; 
Wright  V.  Smith,  66  Ala.  545 ;  John- 


son V.  Hannah,  id.  137 ;  Ware  v. 
Seasongood,  92  Ala.  155 ;  Saunders  v. 
Cavett,  38  Ala.  51 ;  Smith  v.  Moore, 
35  Ala.  76 ;  McKenzie  v.  Bentley,  30 
Ala.  139 ;  Atkins  v.  Kinnan,  20  Wend. 
241;  Pierce  v.  Smith,  1  Minn.  82; 
Anerbach  v.  Hitchcock,  28  Minn.  73 ; 
Hines  v.  Chambers,  29  Minn.  7; 
Bundrem  v.  Denn,  25  Kan.  430; 
Clark  V.  Brott,  71  Mo.  473 ;  Ander- 
son V.  Coburn,  27  Wis.  558 ;  State  v. 
Cornelius,  5  Oregon,  46 ;  Wescott  v. 
Archer,  12  Neb.  345;  Creighton  v. 
Kerr,  1  Colo.  519;  Moresi  v.  Swift, 
15  Nev.  215 ;  Spiegelberg  v.  Sullivan, 
1  New  Mex.  575 ;  Bottom  v.  Clarke, 
7  Cush.  487 ;  Gregg  v.  Nilson,  8  Phila. 
91 ;  Sheedy  v.  Second  National  Bank, 
62  Mo.  17 ;  Pond  v.  Baker,  55  Vt.  400. 
1  Bank  of  Augusta  v.  Conrey,  28 
Miss.  667 ;  Bryan  v.  Lashley,  21  id. 
284 ;  Flake  v.  Day,  22  Ala.  132 ;  First 
N.  Bank  v.  Hanchett,  126  111.  505 ; 
Burnellu  Robertson,  10  111.  282 ;  Han- 
nibal &  St.  Joe  R.  R.  Co.  V.  Crane,  102 
111.  249 ;  Peoria  Ins.  Co.  v.  Warner, 
28  111.  429 ;  Girard  Life  Ins.  Co.  v. 
Field,  45  Pa.  St.  132. 


§  25. J  CONSTKUCTION.  17 

necessary  grounds  do  not  warrant  the  sustaining  of  the  attach- 
ment upon  merely  such  belief.  The  ])laintiff  is  bound  to  pro- 
ceed contradictorily  with  the  defendant  and  to  establish  the 
fact  of  the  existence  of  some  statutory  ground  and  cause  of 
action  by  competent  testimony,^  Or,  if  the  defendant  is  not 
in  court  to  be  proceeded  with  contradictorily,  the  plaintiff 
must  prove  the  existence  of  the  fact  or  facts  which  he  had 
previously  believed  to  be  true,  before  he  can  have  default  con- 
firmed and  final  judgment  rendered  Avith  privilege  upon  the 
property  attached.  In  making  further  proof,  upon  traverse 
of  the  affidavit,  the  burden  of  proof  is  on  him  to  show  that 
the  necessary  facts  constituting  ground  for  attachment  and 
cause  of  action  are  true.  He  must  then  establish,  not  that 
he  believed,  but  that  the  fact  was  that  the  debtor  had  ab- 
sconded, was  about  to  abscond,  was  fraudulently  concealing 
property,  or  whatever  statutory  ground  he  may  have  declared 
upon. 

§  25.  At  this  stage,  the  court  is  in  the  exercise  of  jurisdic- 
tion previously  acquired  through  strict  compliance  with  statu- 
tory requisites;  so  now  an  error  committed  with  reference  to 
the  evidence  given  to  sustain  the  attachment  or  any  other  ille- 
gal use  of  power  vested,  though  specially  given  by  statute, 
would  not  be  void  but  only  voidable ;  would  not  subject  it  to 
subsequent  collateral  attack,  but  would  be  reviewable  only  in 
an  appellate  court. 

1  Sublett  V.  Wood,  76  Va.  318. 


CHAPTER  II. 

STATUTORY  GROUNDS. 
L  The  Usual  Conditions g§  26-31 

II.   NON-EESIDENCY 32-43 

III.  Absence  and  Non-residence 44-49 

IV.  Debtors  Absconding  or  Concealing  Themselves  to  Avoid 

Process 50-56 

V.  Fraudulent  Disposition  of  Property  to  Avoid  Creditors       57-72 
VI.  Exceptional  Grounds 73-76 

I.  The  Usual  Conditions. 

§  26.  JEffective  'process. —  Attachment  is  based  on  the  as- 
sumed indebtedness  of  property;  and  procedure  against  it  is 
authorized  when  the  personal  debtor  cannot  be  reached  effect- 
ively by  ordinary  process.  With  the  exception  of  some  anom- 
alous provisions,  all  the  grounds  for  attachment  may  be  re- 
duced to  one:  the  inadeqliacy  of  ordinary  2')rocess. 

The  several  circumstances  in  which  ordinary  process  is 
deemed  inadequate,  and  the  extraordinary  authorized  by  stat- 
ute, may  be  reduced  to  three : 

First.  The  non-residency  or  permanent  absence  of  the  debtor. 

Second.  The  debtor's  absconding  or  concealing  himself  to 
avoid  summons. 

Third.  His  fraudulent  disposition  of  his  property. 

§  27.  Grounds  in  detail. —  These  three  general  grounds  are 
subdivided  in  the  statutes  so  as  to  present  shades  of  difference. 
Except  in  a  few  states  in  which  attachment  issues  as  a  matter 
of  course  in  any  personal  action,  the  statutes  generally  base 
the  remedy  on  the  one  condition  above  mentioned,  and  specify 
minutely  its  various  ramifications,  which  may  be  summarized 
as  follows : 

I.  Relating  to  the  person  of  the  debtor. 

1.  When  he  is  not  a  resident  of  the  state. 

2.  When  he  resides  out  of  the  state. 

3.  When  he  removes  from  the  state. 


§  27.]  USUAL   CONDITIONS.  19 

4.  When  he  is  about  to  remove  from  the  state. 

5.  "When  he  is  about  to  remove  from  the  state  with  the 
intent  to  change  his  domicile. 

6.  TThen  he  has  left  the  state  with  intention  to  defraud 
his  creditors. 

7.  "When  he  has  left  the  county  to  avoid  summons.^ 

8.  "When  he  absconds  from  the  state. 

9.  "When  his  whereabouts  are  unknown. 

10.  When  he  has  left  the  state  with  the  intention  of  having 
his  property  removed  from  the  state. 

11.  AVhen  he  has  been  absent  for  a  time  specified  by  the 
statute. 

12.  "When  the  defendant  is  a  foreign  corporation. 

13.  W-hen  the  defendant  secretes  himself  so  that  he  cannot 
be  served. 

14.  When  he  conceals  himself  for  the  purpose  of  avoiding 
summons. 

15.  When  he  stands  in  defiance  of  the  officer. 
II.  Kelating  to  the  liable  property  of  the  debtor. 

1.  When  the  debtor  removes  his  property  from  the  state. 

2.  When  he  has  removed  a  material  part  of  it,  not  leaving 
enough  to  pay  the  creditor. 

3.  When  he  is  about  to  remove  his  property  from  the 
state. 

4.  When  he  is  about  to  remove  his  property  out  of  the 
jurisdiction  of  the  court. 

5.  When  he  is  about  to  remove  his  property  out  of  the 
county. 

6.  When  he  has  disposed  of  his  property  fraudulently. 

Y.  When  he  has  conveyed  his  property  to  hinder  and  de- 
fraud his  creditors. 

S.  When  he  is  about  to  convey  his  property  to  hinder  and 
defraud  them. 

9.  When  he  fraudulently  has  assigned  it. 

10.  When  he  fraudulently  has  assigned  or  conveyed  or  con- 
cealed it  within  a  time  specified  by  statute. 

11.  When  he  conceals  his  property. 

12.  When  after  an  order  to  deliver  personal  propert}'  to  his 
creditor  he  has  so  disposed  of  it  as  to  defeat  the  order. 

1  Arkansas,  Nebraska,  Ohio  and  Wyoming. 


20  STATUTOEY    GROUNDS.  [§  28. 

13.  "When  he  fraudulently  withholds  money  or  property. 

14.  "When  he  is  about  to  convert  his  property  (or  a  part  of 
it)  into  money  to  defeat  his  creditors. 

15.  When  he  wrongfully  has  converted  his  personal  prop, 
erty. 

16.  When  he  has  rights  in  action  which  he  conceals. 

Most  of  the  above  grounds  are  found  set  forth  in  all  the 
attachment  statutes,  though  with  some  variety  of  expression. 
All  readily  may  be  arrayed  under  the  three  heads  above  stated, 
and  all  are  forms  of  the  one  ground :  the  inadequacy  of  or- 
dinary process. 

§  28.  Anomalous  grounds. — ^  There  are  authorizations  of 
attachment  under  circumstances  which  have  no  reference  to 
the  inadequacy  of  ordinary  process.  They  are  found  in  the 
statutes  of  a  few  states.     They  may  be  stated  as  a  third  class. 

III.  Exceptional  attachments. 

1.  When  the  debt  sued  upon  was  contracted  fraudulently.* 

2.  When  the  debt  is  due  for  property  obtained  by  the  de- 
fendant under  false  pretenses.^ 

3.  When  damages  are  claimed  for  injuries  caused  by  his 
felony  or  misdemeanor.^ 

4.  When  the  debtor  has  failed  to  pay  on  delivery  after 
contracting  to  pay  then.^ 

5.  When,  since  contracting  the  debt,  he  has  owned  prop- 
perty,  or  received  income,  which  he  has  not  applied  to  the 
payment  though  requested  to  do  so.^ 

6.  When  action  is  brought  against  the  principal  on  an  offi- 
cial bond,  for  money  due  the  state,  or  due  a  county  or  mu- 
nicipality in  the  state.^ 

7.  When  the  defendant  incurred  the  obligation  in  conduct- 
ing steamboat  (or  other  water-craft)  business  on  the  waters 
of  the  state,'' 

8.  When  the  debtor  has  refused  or  failed  to  pay  for  serv- 

1  Kansas,  Maryland,  Michigan,  Min-        ^  Kansas  and  Missouri, 
nesota,    Mississippi,     Missouri,     Ne-        *  Kansas. 

braska.  Oliio,  Oregon,  Pennsylvania,        ^  Rhode  Island. 
Rhode  Island,  Utah,  West  Virginia,        6  Wisconsin. 
Wisconsin  and  Wyoming.  ''  Mississippi. 

2  Indiana,  Texas,  North  Dakota  and 
Arizona. 


§§  29,  30.]  USUAL    CONDITIONS.  21 

ice  rendered  or  labor  done  —  the  pay  being  due  on  the  com- 
jiletion  of  the  work.^ 

9.  When  the  debtor  dies  out  of  the  state,  leaving  property 
within  it.-' 

10.  AVlien  he  has  secretly  removed  his  property  ijito  the 
state,  and  the  cause  of  action  arose  out  of  the  state.' 

§  29.  When  ordinary  process  is  precarious. —  It  must  be 
remarked  that  there  are  many  instances  in  which  ordinary 
process  would  prove  adequate,  though  the  debtor  be  a  non- 
resident, or  an  absconder  or  a  concealer  of  property.  Though 
residing  out  of  the  state,  the  debtor  may  be  present  and 
amenable  to  ordinary  process ;  though  absconding,  concealing 
or  secreting  himself,  he  might  be  cited  by  leaving  summons 
at  the  place  of  his  usual  abode  with  some  member  of  his  fam- 
ily competent  to  receive  it  for  him ;  though  fraudulently  dis- 
posing of  some  of  his  property,  he  may  have  other  property 
liable  to  execution ;  though  having  the  intent  to  defraud,  he 
may  not  reall}''  carry  it  out.  Under  all  such  circumstances, 
ordinary  process  might  prove  sufficient,  but  the  law  allows 
the  extraordinary,  not  merely  when  the  ordinary  process 
would  certainly  prove  inadequate,  but  also  when  its  result  is 
precarious.'* 

§  30.  Kindred  grounds. —  Several  of  the  statutes  couple  ab- 
sence with  non-residence;  and,  where  only  the  latter  term  is 
used,  it  is  construed  by  the  courts  of  some  of  the  states  to 
include  the  former.  Absconding,  either  by  express  enact- 
ment or  by  judicial  construction,  is  in  many  of  the  states 
treated  as  the  hiding  or  running-away  of  the  debtor  under 
such  circumstances  that  he  cannot  be  summoned  even  indi- 
rectly. Secreting  or  otherwise  fraudulently  disposing  of  prop- 
erty is  usually  qualified  so  as  to  show  that  it  is  such  secreting 
that  there  is  nothing  left  or  likely  to  be  left  out  of  which  the 
creditor  may  make  his  money  by  execution  after  judgment 
under  ordinary  process.  Under  statutes  thus  expressed  or 
construed,  it  ought  to  be  always  easy  to  determine,  from  the 
creditor's  affidavit,  whether  there  is  any  necessity  for  the 
issuance  of  the  conservative  writ,-^ 

1  Colorado.  is  a  ground  in  Kentucky.     Dunn  v. 

-Tennessee.  Mc Alpine  (Ky.),  18  S.  W.  363. 

3  Missouri.  5  a  creditor  holding  a  note  against 

*  "Collection  endangered  by  delay"  joint  maimers  sued    one  by  attach- 


22  STATUTORY    GROUNDS.  [§§  31,  32. 

To  secure  the  creditor's  rights,  and  to  insure  the  execution 
of  any  judgment  he  may  obtain,  when  the  condition  of  the 
debtor  is  such  that  there  is  great  improbability  that  his  prop- 
erty will  remain  answerable  to  judgment  following  ordinary 
process,  the  legislator  authorizes  tlie  creation  of  an  incipient 
specific  lien  by  means  of  attachment,  and  thus  conserves  the 
debtor's  property  w^hen  attached  —  putting  it  beyond  the 
power  of  the  debtor  to  incumber  or  alienate  it  to  the  prejudice 
of  the  creditor. 

§  31.  Plaintiff^ s  sliowing. —  In  the  incipiency  of  the  attach- 
ment suit,  when  the  writ  is  applied  for,  when  only  the  creditor 
is  before  the  court,  nothing  can  be  known  of  the  facts  except 
by  his  own  ex  parte  showing;  hence,  what  he  swears  to  be 
true  and  obligates  himself  by  bond  to  make  good  must  consti- 
tute the  data  upon  which  to  decide  whether  he  is  entitled  to 
the  issuance  of  the  extraordinary  process.  Most  of  the  state 
statutes  authorizing  attachment  make  the  creditor's  sworn 
statement  the  criterion  by  which  the  inadequacy  of  the  or- 
dinary process  and  the  necessity  for  the  extraordinary  are 
to  be  determined;  or,  what  is  equivalent,  they  make  the  affi- 
davit the  test  whether  the  debtor  is  properly  charged  to  be 
one  whose  property  is  attachable  under  the  law  and  ought  to 
be  conserved  by  having  a  specific  lien  immediately  put  upon 
it.  The  testing  of  the  truth  of  such  averment  comes  at  a  later 
stage  of  the  case.  It  will  be  seen  that  it  is  the  creditor's  as- 
sertion, belief  or  even  fear  which  oftentimes  controls  the  ques- 
tion in  the  first  instance ;  and  the  rule  is,  not  that  the  debtor 
must  certainly  be  a  non-resideni,  an  absconder  or  concealer  of 
property,  but  that  he  must  be  duly  charged  as  such. 

II.    NoN-EESIDENCY. 

§  32.  Uniformity. —  All  the  states  authorize  attachments 
against  the  property  of  non-resident  debtors.  There  is  a  general 
uniformity  in  the  statutes,  so  far  as  concerns  the  right  of  action 
with  the  conservative  remedy,  against  debtors  not  residing  in 
the  state  in  Avhich  the  suit  is  instituted,  who  have  propert}'' 
within  it   subject  to   execution   for  debt.     The   principle  is 

ment;  but,  as  he  could  have  collected    necessary.     Francis    v.   Burnett,   84 
by  suing  others  by  ordinary  process,     Ky.  23 ;  Civ,  Code  Ky.,  g  194  (2). 
the  attachment  was  dismissed  as  un- 


§  33.]  NON-KESIDEXCY.  23 

everywhere  recognized  that  the  property  is  subject  to  the  ju- 
risdiction though  its  owner  cannot  be  reached  by  process. 
Discrimination  against  non-residents  is  constitutional;  the 
attachment  of  a  non-resident's  property  when  that  of  a  resi- 
dent would  not  be  liable  is  not  violative  of  the  fourteenth 
amendment.' 

The  debtor,  whether  living  abroad  or  in  a  neighboring  state, 
is  deemed  a  foreign  debtor.  The  attachment  against  his  prop- 
erty, when  he  is  not  found  in  the  state  where  the  suit  is 
brought  and  served  with  process,  but  is  merely  notified  by 
publication,  is  a  foreign  attachment.  The  distinction  between 
foreign  and  domestic  attachment  is  not  observed  b}'^  all  of  the 
states.  Where  it  is  observed,  the  former  is  usually  associated 
with  garnishment  or  the  trustee  process.  However,  in  all 
the  states,  the  creditor  has  his  remedy  by  attachment  against 
the  property  of  his  non-resident  debtor,  whatever  the  term 
by  which  the  process  is  designated.  The  process  is  none  the 
less  that  of  foreign  attachment  by  reason  of  the  avoidance  of 
the  term. 

§  33.  Term  used  in  statutes. —  The  statutes  designedly  era- 
])loy  the  term  "  non-resident "  instead  of  "  foreign-resident ;  " 
for  the  condition  upon  which  attachment  issues  is,  not  that 
the  debtor  be  a  resident  of  another  state  or  country,  but  that 
he  be  not  a  resident  of  the  state  in  which  the  suit  against  him 
is  brought  and  the  attachment  issued. 

Non-residence  means  not  residing  in  the  state.  A  debtor 
may  be  absent  from  the  court's  territorial  jurisdiction,  yet  be 
a  resident  of  the  state.- 

The  statutes  do  not  all  use  precisely  the  same  phraseology 
in  au,thorizing  attachment  against  the  property  of  non-resi- 
dents. The  words  employed  in  many  of  the  statutes  are, 
"  When  the  defendant  is  a  non-resident  of  this  state ; "  in 
others,  "When  the  defendant  is  not  a  resident,"  "When  the 
defendant  resides  out  of  the  state,"  and  "  When  the  defendant 
is  not  an  inhabitant,"  etc. ;  which  are  equivalent  expressions 
as  they  appear  in  their  respective  contexts.  In  Michigan  the 
plaintiff  must  swear  that  his  debtor  is  not  a  resident  of  the 
state  and  has  not  resided  therein  for  three  months  preceding 

1  Pyrolusite  v.  Ward,  73  Ga.  491.  -  Chariton  County  v.  Moberly,  59 

Mo.  238. 


24  STATUTORY   GEOUNDS.  [§  34. 

the  making  of  the  affidavit.  In  other  states  there  are  qual- 
ifications. 

Some  of  the  statutes  expressly  mention  foreign  corpora- 
tions, while  others  may  be  understood  to  include  them  under 
general  designations  construable  as  including  artificial  per- 
sons.^ 

§  34.  The  prominent  idea  of  the  various  statute  authoriza- 
tions, so  far  as  the  ground  under  consideration  is  concerned, 
is  that  the  debtor  must  be  a  non-resident  of  the  state  where 
the  attachment  is  sued  out  —  not  that  he  must  be  a  resident 
elsewhere.-  He  need  not  be  a  foreign  resident.  He  may  be 
a  cosmopolitan  having  no  fixed  place  of  abode.  He  may  be 
a  constant  traveler  claiming  no  home.  He  may  be  personally 
amenable  to  no  particular  jurisdiction.  The  essential  charge 
is  that  he  is  not  residing  or  living  in  the  state ;  that  is,  he  has 
no  abode  or  home  within  it  where  process  may  be  served  so 
as  eft'ectuall}^  to  reach  him.  In  other  words,  his  property  is 
attachable  if  his  residence  is  not  such  as  to  subject  him  per- 
sonally to  the  jurisdiction  of  the  court,  and  place  him  upon 
equality  with  other  residents  in  this  respect. 

The  debtor  may  be  the  subject  of  a  foreign  power;  he  may 
be  a  citizen  of  a  state  other  than  that  in  which  the  attachment 
suit  is  instituted ;  he  may  not  onlv  be  a  citizen  and  a  voter 
there,  but  his  domicile  or  principal  residence  may  be  there; 
yet  if  he  has  a  residence  also  in  the  place  where  the  suit  is 
brought,  at  which  he  may  be  duly  served  with  ordinary  pro- 
cess, his  property  ought  not  to  be  subjected  to  attachment.  A 
place  of  abode  at  which  a  summons  may  be  lawfully  served 
"is  the  condition  on  which  process  of  attachment  cannot  be 
issued.  If  a  debtor  has  not  such  a  residence  he  is  a  non- 
resident within  the  statute  and  may  be  proceeded  against  by 

1  North  Ala.   D.  Co.  v.  Orman,  55  14  La.  415;  Hazzard  t'.  Agricultural 

Fed.    18;    Ala.   Code,  §§  2930,  2940;  Bank,^  11   Rob.  (La.)  326;  Libbey  v. 

Phillipsburg    Bank  v.   Lackawanna  Hodgdon,  9  N.  H.  394;  Bushnell  v. 

R.   R.  Co.,  27   N.  J.  L.  129 ;   Cooke  Com.  Ins.  Co.,  15  S.  &  R.  174 ;  Plant- 

V.   State    National   Bank,   50    Barb,  ers'  &  Merchants'  Bank  v.  Andrews, 

339;  Bowen  v.  First  National  Bank  8  Porter,  404;  Union  Bank  n  United 

of  Medina,  34  How.  (N.  Y.)  Pr.  408;  States  Bank,  4  Humph.  369;  St.  Louis 

Mineral  Point  R.   R.  Co.    v.    Keep,  P.  Ins.  Co.  v.  Cohen,  9  Mo.  421. 
22  111.  9;  S.  C.  R.  R  Co.  v.  McDonald,        2  Hickson  v.  Brown  (Ga.),  17  S.  E. 

5  Ga.  531 ;  Martin  v.  Branch  Bank.  1035. 


§  35.]  NON-KKSIDENCV.  25 

attachment.  .  .  .  The  use  of  this  writ  when  the  defend- 
ant is  within  reach  of  ordinary  process  is  wholly  inconsistent 
with  the  spirit  and  design  of  the  statute."  ^ 

§  35.  Temporarilij  present — It  is  true  that  a  debtor  may 
be  within  reach  of  ordinary  process  by  being  temporarily 
within  the  state  where  the  suit  is  brought,  and  yet  his  pro])- 
erty  be  amenable  to  attachment ;  for  he,  being  a  non-resident, 
could  not  defend  on  the  ground  that  he  was  actually  served 
with  summons.'-  The  rule  is  that  he  must  have  an  abode 
within  the  state  where  process  can  always  legally  reach  him 
in  order  to  be  exempt  from  this  remedy.-  The  accident  of 
finding  him  within  the  jurisdiction  will  not  deprive  the  plaint- 
iff of  his  right  to  create  a  lien  upon  the  debtor's  property 
situated  in  the  state. ^  Even  if  the  debtor  has  a  temporary 
residence  in  the  state  where  the  suit  is  brought,  it  has  been 
held  that  if  he  is  absent,  and  has  his  principal  and  usual  place 
of  abode  in  another  state,  he  may  be  sued  by  attachment  as 
a  non-resident.'*  Eesidence  must  be  permanent  —  not  tempo- 
i"ary  —  in  contemplation  of  the  attachment  statutes.^  One  may 
have  a  temporary  abode  at  a  hotel  or  boarding-house ;  but,  if 
it  is  not  under  such  circumstances  that  the  leaving  of  a  sum- 
mons there,  addressed  to  him,  with  a  person  of  proper  age, 
would  be  legally  binding  upon  him,  and  would  be  such  service 
as  to  enable  the  officer  to  make  a  return  that  would  be  as 
binding  upon  the  sojourner  as  it  would  be  upon  any  resident- 

•  Herbert  v.  Herbert,  50  N.  J.  Eq.  Houghtou  v.   Ault,   id.   77 ;    Lee   v, 

4G7 ;  Baldwin  v.  Flagg,  43  N.  J.  L.  Stanley,  9  id.  272. 

495;    Perrine   v.    Evans,    35  id.  221;  ^  Burcalow  v.  Trump,  1   Houston, 

Stout  V.   Leonard,  87   id.  492;    City  363;  Greene  n  Beck  with,  38  Mo.  384; 

Bank  v.  Merrit,  1  Green,  131 ;  Bron-  Jackson  v.  Perry,  13  B.  Mon.  231 ; 

son  V.  Shinn,  id.  250 ;  Clarke  v.  Li-  Malone    v.    Lindle}',    1    Phila.   192; 

kens,    2    Dutch.    207;     Phillipsburg  Bryan  u  Dunseth.  1  Martin  (N.  S.), 

Bank  ?•.  Lackawanna  R  R  Co.,  3  id.  412;  Rayne   v.  Taylor,  10   La.  Ann. 

206;    Kuglar  v.   Shreve,   4   id.  129;  726. 

Boundred  v.  Del  Hoyo,  Spence,  333  *  Stout  v.  Leonard,  37  N.  J.  L.  492 ; 

(or  20   N.  J.    L.  328);    In   re   Alex.  Murphy  r.  Baldwin,  11  Abb.  Pr.  (N.  S.) 

Thompson,  1  Wend.  43;  Haggart  v.  407;   Town  v.   Church,  2  Abb.    Pr. 

Morgan,   5  N.  Y.  422;    Ellington  v.  299 ;  Cooke  v.  Appleton,  51  N.  Y.  529 ; 

Moore,  17  Mo.  424;  Brown  v.  Crane,  Coffin  r.  Still,  5  N.  Y.  Civ.  Proc.  261. 

69  Miss.  678 ;  Munroe  v.  Williams,  37  ^  Mitchell  v.  United  States,  21  Wall. 

S.  C.  81.  350 ;  Cbesney  v.   Francisco.  12  Neb. 

-Murphy  V.  Baldwin.  41  How.  Pr.  626;    Long  v.  Ryan,  30  Gratt.   718; 

270;    Chaiue   r.    Wilson,  16  id.  552;  Reed's  x\ppeal,  71  Pa.  St.  378. 


26  STATUTORY    GROUNDS.  [§§  36,  37. 

citizen  thus  served  at  his  domicile,  it  is  not  such  a  residence  as 
would  exempt  his  property  from  attachment.  The  debtor 
may  have  a  place  of  business  within  the  state,  with  a  clerk  or 
agent  representing  him  in  his  absence,  yet  if  he  has  no  place 
or  abode  within  it  where  a  summons  may  be  left,  as  at  the  domi- 
cile of  a  citizen-resident,  his  property  may  be  attached.^  A 
wife  was  held  to  be  not  within  the  statutory  description,  "  one 
who  regularly  transacts  business  in  person"  in  New  York 
city,  when  she  transacts  it  by  her  husband  as  her  agent  while 
she  lives  out  of  the  city.- 

§  36.  Question  of  fact. —  The  character  of  the  residence, 
whether  such  as  will  exempt  from  attachment  or  not,  is  often 
a  nice  question  of  fact;  but  the  law  is  that  the  debtor's  prop- 
erty is  attachable  if  he  has  not  a  place  within  the  state  where 
he  is  legally  answerable  for  citation  left  for  him  there  under 
circumstances  which  would  constitute  a  lawful  summons  upon 
any  citizen-resident  if  left  at  his  domicile.  And  if  he  has  such 
a  place;  if  the  fact  of  his  having  it  is  admitted,  it  does  not 
matter  that  he  has  but  recently  acquired  or  established  it. 

§  37.  Intention  to  remain. —  A  new  comer  into  the  state, 
with  the  design  of  remaining,  who  has  an  abode  at  which  a 
summons  may  be  left  so  as  to  make  legal  service  upon  him,  is 
a  resident  within  the  meaning  of  the  attachment  laws.^  He 
may  not  have  acquired  citizenship,  he  may  have  no  intention 
of  acquiring  a  political  domicile,  he  may  not  have  become  even 
a  resident  for  all  intents  and  purposes ;  yet  if  he  has  a  home  at 
which  he  may  be  reached  by  ordinary  process  at  any  time  — 
(not  for  a  brief  period  of  a  few  days  only)  —  he  is  not  a  non- 
resident in  the  sense  in  which  the  statutes  employ  the  term. 
This  is  the  true  criterion  by  which  to  decide  whether  or  not 
his  property  is  attachable  on  the  ground  now  under  consider- 
ation :  if  the  debtor  has  a  place  of  usual  abode  in  the  state,  at 
which  ordinary  process  may  be  served,  his  property  is  not  at- 
tachable as  that  of  a  non-resident ;  but  if  he  has  not,  it  is 
attachable  as  such. 

1  Chase  v.  Ninth  Nat.  Bank,  56  Pa.  Swaney  v.  Hutchins,   13  Neb.   266 ; 

St.  355.     See  Watson  v.  Pierpont,  7  Heidenback  v.  Schland,  10  How.  Pr. 

Martin  (La.),  413.  477 ;  Andrews  v.  Mundy,  36  W.  Va 

2 Bowman  v.  Perine,  23  Abb.  N.  C.  22.   See  Brunswick  v.  Mims  (Ala.),  11 

236 ;  N.  Y.  Civ.  Code,  §  3169  (3).  So.  302. 

3  The  People  v.  McCIay,  2  Neb.  7 ; 


§  38.]  NON-KESIDENCY.  27 

Intention  to  remain,  on  the  part  of  one  about  to  conic  into 
the  state,  is  of  no  signilicance  when  not  accompanied  with  the 
acts  of  immigration  and  the  establishment  of  a  place  of  resi- 
dence;^ but  as  soon  as  he  arrives  with  such  intention,  and 
establishes  a  home  meant  to  be  permanent,  though  he  may  be 
the  lessee  of  the  house  in  which  he  lives  or  a  boarder,  he  is  at 
once  a  resident  within  the  purview  of  the  attachment  laws.'* 
On  the  other  hand,  the  act  of  coming  into  the  state  is  of  no 
signilicance  without  the  intent  to  stay.  So  if  one  leaves  with 
the  intent  of  changing  residence,  the  change  is  of  immediate 
effect,*  but  the  intent,  without  leaving,  docs  not  make  him 
liable.* 

§  38.  Domicile. —  It  is  said  that,  in  attachment  law,  domicile 
may  be  in  one  state  and  residence  in  another.'^  This  should 
be  understood  as  meaning  that  one's  principal  residence,  where 
he  may  have  citizenship  and  exercise  political  rights,  may  be 
in  one  state  while  he  has  such  residence  in  another  as  to  ren- 
der him  susceptible  of  being  served,  with  summons  at  the  lat- 
ter and  thus  amenable  to  ordinary  process  there.^  Whether 
or  not  a  man  is  a  resident  often  depends  upon  peculiar  cir- 
cumstances, and  is  determinable  by  the  facts  proved  in  the 
case,  as  is  am])ly  illustrated  in  decisions.^ 

The  Wolfe's  legal  residence  is  fixed  by  that  of  her  husband.'' 

•  Hauson  v.  Graham,  83  Cal.  631 ;  Hanovei*    N.   Bank    v.   Stebbins,   09 

Adams  v.  Evans,  19  Kan.  174.  Hun,  308.     And,  on  the  other  hand, 

'  Chesney  v.  Francisco,  12  Neb.  626 ;  he  may  be  a  non-resident  though 

Kennedy  v.  BailUe,  3  Yeates,  55.  poUtically  domiciliated  in  the  state. 


3  Green  v.  Beckwith,  38  Mo.  384 
Matter  of  Fitzgerald,  2  Gaines,  318 
Boardman  v.  Bickford,  2  xVikens,  345 
Burrows  v.  Miller,  4  How.  Pr.  349 


Kellar  v.  Carr,  40  Minn.  428. 

'•  Wood  V.  Hamilton,  14  Daly, 
41 ;  Burrows  i\  Jliller,  4  How.  Pr. 
349  ;  Brown  v.  Aslibough,  40  id.  260 ; 


Whitlej'-  V.  Steakley,  3  Bax.  393 ;  Mc-  Thurneysseu    v.    Vouthier,   1   Miles, 

Collem  V.  White,  23  Ind.  43;  Reed  v.  422;  Shipman  v.  Woodbury,  2  id.  67; 

Ketch,  1  Phila.  105 ;  Taylor  r.  Knox,  Clarke  v.   Pratt,   18  La.  Ann.    102; 

1  Dall.  158.;  Farrow  x\   Barker,  3  B.  Kennedy   v.   Baillie.   3    Yeates,   55 ; 

Mon.  217;  Nailoru  French,  4  Yeates,  Wells  v.  People,  44  111.  40;  Smith  v. 

241;  Pfoutz  V.  Comford,  36  Pa.  St  Story,   1    Humph.    420;    Wheeler  v. 

420;  Moore  v.  Holt.  10  Gratt  284.  Degnau,  2  Nott  &  McC.  323;  Bain- 

*  HoUiday  i\  Mansker,  44  Mo.  App.  bridge  v.   Alderson,   2  Browne,  51 ; 

465 ;  Lawson  v.  Adiard,  46  Minn.  243 ;  Stratton  v.  Brigham,  2  Sueed,  420. 

Hanson  v.  Graham,  82  Cal.  631.  8  Baldwin  v.  Flagg,  43  N.  J.  L.  495 ; 

5  Morgan  r.  Nunes,  54  Miss.  308.  Hackettstown    Bank  v.   Mitchell,   4 

6  Krone  v.   Cooper,   43  Ark.   547;  Dutch.  (28  N.   J.   L.)   516;  Hunt  v. 


28  STATUTORY    GROUNDS.  [§  39. 

§  39.  "  Eesidence  "  as  used  in  the  statutes  is  not  synonymous 
with  "  domicile."  One  may  have  several  residences  but  he 
can  have  but  one  domicile.  His  principal  residence  is  his 
domicile.  It  is  not  necessary  that  his  principal  residence 
should  be  in  the  state  or  within  the  jurisdiction  where  attach- 
ment is  sued  out  in  order  to  defend  on  the  ground  that  he  is 
a  resident.  If  he  has  a  place  of  abode  there  where  he  may 
usually  be  found,  and  where  he  would  be  bound  by  a  summons 
left  thereat,  he  is  a  resident  within  the  meaning  of  the  word 
as  ordinarily  used  in  the  statutes.  He  can  be  reached  by  or- 
dinary process,  and  therefore  the  reason  for  employing  the 
extraordinary  one  of  attachment  does  not  apply.^  On  the- 
other  hand,  a  debtor  may  have  his  property  attached  as  that 
of  a  non-resident  if  he  has  not  a  place  of  abode  in  the  state  at 
which  summons  can  be  served,-  though  he  has  a  resident  rep- 
resentative authorized  to  act  for  him  in  his  line  of  business  (as 
before  remarked)  in  the  state  in  which  the  attachment  is  sued 
out.^  Difference  between  residence  and  domicile  has  been 
frequently  pointed  out  in  decisions.* 

When  used  unqualifiedly  in  the  statutes  on  attachment, 
"residence"  usually  means  "home"  or  "abode;"  and  "resi- 
dent "  means  "  inhabitant."  ^ 

Hunt.  72   N.    Y.  217 ;  SomeiviUe  v.  Abb.  Pr.  (N.  S.)  407 ;  41  How.  Pr.  270 ; 

Somerville,   5  Ves.   787 ;    Greene    v.  Matter  of  Thompson,  1  Wend.  43. 

Greene,    11   Pick.   409;    Hanover  v.  ^  See  Fielding  v.   Lucas.  37  N.  Y. 

Turner,    14    Mass.    281;    Cambridge  197. 

V.  Charlestown,  13  id.  501;  Williams  *  Wolf  v.  McGavock,  28  Wis.  516; 

t\   Whiting,    11    id.    424;    Knox    v.  Alston  v.  Newcomer,  42  Miss.  186; 

Waldoborough.  8  Greenl.  453 ;  Swa-  Dorsey  v.  Kyle,  30  Md.  512 ;  Weber 

ney  v.  Hutchins,  13  Neb.  266.  v.  Weitling,  8  C.  E.  Green,  441 ;  Fos- 

1  Brundred  v.  Del  Hoyo,  20  N.  J.  L.  ter  v.  Hall,  4  Humph.  346 ;  Haggart 

328;    Ellington    v.    Moore,    17    Mo.  w.  Morgan,  1  Selden,  422;  Weitkamp 

424  V.  Loehr,  53  N.  Y.  Superior  Ct.  79. 

^BaldwinnFlagg,  43N.  J.  L.495;  5  Barnefs  Case,  1  Dall.  153;  Lyie 

Clark  V.  Likens,  26  id.  207 ;  Stout  v.  v.   Foreman,   id.    480 ;    Rifiewick    r. 

Leonard,  87  id.  492.   A  debtor  having  Davis,  19  Md.  82 ;  Matter  of  Wrigley, 

a  residence  in  New  Jersey  which  is  8  Wend.    184 ;    Harvard   College   r. 

not  his  usual  place  of  abode  may  be  Gore,  5  Pick.  879 ;  Roosevelt  v.  Kel- 

sued  by  attachment  there,  as  a  nou-  logg,  20  Johns.   208 ;    Boardman  v. 

resident,  if  absent  from  the  state  at  Bickford,  2   Aik.  (Vt.)  345;    Wiltse 

the  time  —  he  having  another  resi-  r.   Stearns,    13  Iowa,   282;   Guise  v. 

dance  beyond  the  state.     So,  also,  in  O'Daniel,  1  Binney,   349;   Catlin  r. 

New  York.     Murphy  v.  Baldwin,  11  Gladding,  4  Mason,  308;  Inhabitants 


§  iO.]  NON-KESIDENCT.  29 

AVith  such  definition,  it  is  not  insistent  to  say  that  one  may 
have  residence  in  a  state  without  citizenship.  It  may  be  cor- 
rectly said  that  attachment  against  the  property  of  one  absent 
from  his  domicile  and  out  of  the  state  in  which  it  is  located 
may  be  maintained  as  against  a  "  non-resident,"  where  the 
statute  provision  uses  the  term  so  as  to  signify  one  not  act- 
ually present  and  residing  in  the  state  when  the  writ  is  issued.^ 
The  phrase  in  a  statute :  "  If  the  defendant  is  not  in  this  state," 
has  been  held  to  apply  only  to  a  non-resident ;  not  to  one 
temporarily  absent.'^ 

§40.  Business  place. —  The  debtor's  business  establishment 
does  not  determine  his  place  of  residence.  The  fact  that  one 
does  business  wholly  or  mainly  within  a  certain  state  is  a  cir- 
cumstance to  be  considered,  with  other  facts,  in  determining 
his  intentions  and  his  actual  residency.  A  business  establish- 
ment alone  does  not  constitute  a  residence,  which  is  a  place  of 
abode ;  ^  and  the  circumstance  that  a  merchant  does  business 
in  one  state  will  be  entitled  to  no  consideration  in  determining 
whether  his  property  is  liable  to  attachment,  if  he  keeps  his 
home,  at  the  same  time,  in  another  state.^  One  doing  busi- 
ness for  another  may  be  liable  to  be  sued  by  attachment  in 
his  individual  capacity,  while  his  principal  is  not  thus  liable 
though  the  summons  be  served  on  the  ao-ent.  The  lessee  of 
a  railroad  may  be  personally  amenable  to  such  suit,  though 
the  railroad  corporation  may  be  not  liable.^ 

of  Turner  v.  Inhabitants  of  Buck-  sperrine  v.  Evans,  35  N.  J.  L.  221; 

field.  4  Greenleaf,  231.  "Non-resident"  means  one  who  has 

1  McKinley  v.  Fowler,  67  How.  Pr.  not  his  abode  in  the  state :  so  attach- 
388 ;  Kellar  v.  Carr,  40  Minn.  428 ;  meut  may  issue  against  the  property 
Eberly  v.  Rowland,  1  Pearson  (Pa.),  of  those  who  do  business  in  the  state 
812 ;  Munroe  v.  Frosh,  2  La.  Ann.  but  have  not  their  abode  in  it.  See 
902;  Rayne  v.  Taylor,  10  id,  726;  Robbins  v.  Alley,  38  Ind.  553;  Mur- 
Haggart  v.  Morgan,  5  N.  Y.  422;  phy  v.  Baldwin,  41  How.  Pr.  270; 
Sandel  v.  George,  18  La.  Ann.  526;  Cooke  t?.  Appleton,  51  N.  Y.  Superior 
Risewick  v.  Davis,  19  Md.  82 ;  Har- .  Ct  529.  Compare  Coffin  v.  Stitt,  5  N. 
vard  College  v.  Gore,  5  Pick.  379 ;  Y.  Civ.  Proc.  261 ;  Tower  v.  Church, 
Frost  V.  Brisben,  19  Wend.  11 ;  Mat-  2  Abb.  Pr.  299. 

ter  of  Wrigley,  4  Weud.   608:  8  id.  ^Wallace  v.  Castle,  68  N.  Y.  370. 

134;  Matter  of  Thompson,   1  Wend  If  the  debtor  resides  in  another  state 

43 ;   Morgan  v.  Nuues,  54  Miss.  308.  he  is  not  to  be  deemed  a  resident  of 

2  Potter  V.  Sanborn,  49  Ct.  452.  in  New  York  because  he  has  a  place  of 
exposition  of  Ct  Geul.  Stat,  p.  419,  business  there. 

g  19.  s  Breed  v.  Mitchell,  48  Ga.  533.     A 


30  STATUTORY    GROUNDS.  [§§  41,  42. 

§  41.  It  is  not  to  be  inferred  from  the  fact  that  the  general 
office  of  attachment  is  to  meet  the  want  of  a  creditor  when 
ordinary  process  will  not  avail  him,  that  therefore  it  is  in- 
variably true  that  a  non-resident  cannot  be  proceeded  against 
by  the  attachment  of  his  property  when  he  is  temporarily 
present  and  njay  be  summoned.  The  general  office  is  as 
stated ;  the  reason  which  underlies  it  is  of  general  application ; 
the  non-resident  is  ordinarily  beyond  the  reach  of  process  so 
that  the  general  rule  has  such  reason  for  its  existence.  The 
statutes  generally  make  no  exception  in  case  of  the  tempo- 
rary presence  of  the  non-resident ;  and  in  such  case,  attach- 
ment lies  against  his  property  as  though  he  were  in  a  foreign 
jurisdiction.^  Indeed,  the  present  absence  of  the  non-resident 
from  the  state  need  not  be  averred,^  unless  the  statute  couples 
absence  and  non-residence  as  a  ground  for  foreign  attachment,^ 
or  unless  the  statute  is  construed  to  mean,  by  "  non-resident," 
or  "not  a  resident,"  one  who  is  not  at  home  though  having  a 
residence;  one  who  is  not  literally  within  the  jurisdiction 
when  the  attachment  is  sued  out.  Under  such  construction 
the  question  is  whether  the  debtor  is  present  or  absent  rather 
than  whether  he  is  a  resident  or  non-resident.*  Persons  act- 
ually in  California  and  professionally  engaged  there  are  held 
to  be  not  non-residents.^ 

§  42.  Riijlit  to  the  writ —  The  creditor  is  entitled  to  his  writ 
when  he  has  laid  the  ground  of  non-residence,''  or  alleged  pro- 
tracted absence  such  as  prevents  the  effectual  use  of  the  ordi- 
nary process,  though  subsequent  events  may  show  that  the 
debtor's  absence  was  not  for  such  length  of  time  as  the  affiant 
had  believed  it  would  be.^  But  if  the  creditor  is  in  error  re- 
non-resident  lessee  of  a  railroad  in  (Pa.),  51.  See  Scruggs  v.  Blair,  44 
Georgia  which  may  be  served  there  Miss.  406 :  attachment  in  equity, 
is  yet  liable  to  be  proceeded  against  *  Hoggett  v.  Emerson,  8  Kan.  263, 
by  attachment  like  other  non-resi-  construing  Kansas  Code  Pro.,  §  21. 
dents.  5  Egener  v.  Juch  (Cal.),  35  P.  432. 

iBurcalow  v.  Trump,  1  Houston  /5ee  Hanson  v.  Graham,  82  Cal.  631. 
(Del.),  363;  Green  v.  Beckwith,  38  6  He  need  state  nothing  but  the 
Mo.  384.  ■         bare  fact  of  non-residence.     Matter 

2  Clark  V.  Arnold,  9  Dana  (Ky.),  of  Brown,  21  Wend.  316.  Compare 
305.  Thompson  v.  Chambers,  12  S.  &  M. 

3  Fuller  V.  Bryan,  20  Pa.  St.  144 ;    488. 

Bainbridge  v.   Alderson,  2   Browne        ''  Leathers  v.  Cannon,  27  La.  Ann. 


§§  43,  44:.]  ABSENCE   AND    NON-RESIDENCE.  31 

specting  the  material  averment  upon  which  the  attachment  is 
issued,  if  he  makes  affidavit  that  the  debtor  is  a  non-resident 
when  the  contrary  is  the  case  in  fact,  and  proceeds  to  give 
publication  notice,  and  prosecutes  the  case  to  judgment,  the 
whole  proceeding  is  a  nullity.^ 

§  43.  Statutory  limits. —  Attachment  authorized  against  a 
non-resident  debtor  is  not  therefore  applicable  to  his  executor, 
administrator,  heirs,  trustees  or  other  representatives,  unless 
the  statute  goes  further  than  to  reach  the  debtor  personally.^ 
The  authorization  is  not  confined  to  cases  where  the  debtor 
is  sued  alone;  he  may  be  included  in  a  suit  against  a  resident 
lirra.^ 

Xon-residents  may  sue  by  attachment  under  general  au- 
thorization. There  must  be  an  exception  to  the  general  terms 
of  a  statute  in  order  to  exclude  them.* 

III.  Absence  and  Non-eesidence. 

§  44.  Absence  as  affected  hy  intention. —  What  constitutes 
such  absence  as  to  amount  to  non-residence  within  the  mean- 
ing of  the  attachment  laws  depends  much  upon  the  intention 
of  the  debtor.^     Whether  his  intention  is  to  maintain  his  resi- 

522.  Attachment  sustained  against  son  v.  Walsworth,  1  Johns.  Cases, 
the  property  of  an  absentee  travel-  372 ;  Cheatham  v.  Carrington,  14  La. 
ing  abroad  who  had  designed  to  be  Ann.  696 ;  Debys  v.  Yerbey,  1  Martin, 
absent  from  the  state  two  years  or  N.  S.  (La.)  380 ;  Matter  of  Hurd,  9 
more,  and  who  left  no  agent,  and  Wend.  465 ;  Bryant  v.  Fussel,  11  R  L 
could  not  be  reached  by  ordinary  286 ;  Haight  v.  Berg,  3  Green  (N,  J.), 
process ;  and  his  return  at  an  earlier  183;  Peacock  v.  Wildes,  3  Halst. 
date  than  he  had  designed  was  held  (N.  J.)  179 ;  Henderson  v.  Henderson, 
not  to  affect  the  process  issued  be-  1  Cr.  C.  C.  469 ;  Patterson  v.  Laugh- 
fore  his  return.  lin,  id.  352. 

1  Though    an  attachment  suit  be  3  Collier  v.  Hanna,  71  Md.  253. 

prosecuted    to     judgment    on    the  *  Givens  v.  Merchants'  N.  Bank,  85 

ground  that  the  debtor  has  perma-  111.  442 ;  Mitchell  v.  Shook,  72  id.  492 ; 

nently  left  the  state  of  Louisiana,  the  Graham    v.   Bradbury,   7    Mo.   281 ; 

decree  is  void  if  the  debtor  is  really  Posey  v.  Buckner,  3  id.  413 ;  Gray  v. 

a  resident,  and  has  not  been  cited  Biscoe,  6  Bush,  687 ;  Tyson  v.  Lans- 

and  has  not  appeared  in  the  suit,  ing,- 10  La.  444 ;  McClerkin  v.  Sutton, ' 

Succ^ession  of  Durand,  34  La.  Ann.  29  Ind.  407. 

352.  swells  r.  People,  44  111.   40;  Mor- 

^McCoombe  v.  Dunch,  2  Dall.  73;  gan  r.  Avery,  7  Barb.   656;   Swanty 

Taliaferro  v.  Lane,  23  Ala.  369 ;  Jack-  v.  Hutcbins,  13  Neb.  206. 


32 


STATUTORY    GROUNDS. 


[§44. 


dence  or  abandon  it  may  be  inferred  from  protracted  absence 
with  continued  silence  as  to  his  purpose,  and  total  neglect  of 
his  affairs  within  the  state ;  ^  or  from  his  own  declarations  that 
he  has  left  the  state  permanently  or  that  his  home  and  that 
of  his  family  are  in  another  state ;  -  or,  on  the  other  hand, 
from  such  circumstances  as  that  his  family  have  not  removed, 
that  summons  may  be  left  with  them  so  as  to  bind  him,  that 
he  is  preparing-  to  return,  etc.^  Acts  indicating  the  intent  of 
permanent  removal  outweigh  the  debtor's  avowals  to  the 
contrary.*  Statements  of  the  defendant,  as  to  intent  to  leave 
the  state,  cannot  be  received  as  evidence  to  justify  attach- 
ment, if  made  after  the  levy.^  Actual  departure  from  the 
state  is  no  ground  in  itself.  Such  intent  cannot  properly  be 
inferred  from  the  fact  of  a  temporary  absence;  and  that  alone 
constitutes  no  ground  for  attachment.^  Even  though  a  resi- 
dent may  design  to  remove  permanently  from  the  state,  and 


1  Walker  v.  Barrelli.  32  La.  Ann. 
467.  Intent  to  abandon  domicile  was 
inferred  from  ten  years'  absence  from 
the  state  by  the  debtor  without  com- 
municating his  intentions  or  where- 
abouts, or  anything  concerning  his 


4  Wolf  V.  McGavock,  23  Wis.  516 ; 
New  Orleans  Canal  and  Banking  Co. 
V.  Comly,  1  Rob.  (La.)  231 ;  Reeves  v. 
Comly,  3  id.  363 ;  Simons  v.  Jacobs, 
15  La,  Ann.  425. 

5  Baldwin  v.  Walker,  94  Ala.  514 ; 


property  or  its  administration ;  and  Hale  v.  Richardson,  89  N.  C.  62. 

the  attachment  of  his   property  as  ^  Alston  v.  Newcomer,  42  Miss.  186 ; 

that  of  a  non-resident  was  sustained.  Fuller  v.  Bryan,  20  Pa.  St.  144 ;  Man- 

2  Loder  v.  Littlefield,  39  Mich.  512.  dell  v.  Peet,  18  Ark.  236 ;  Matter  of 

Property  deemed  subject  to  attach--  Chipman,    1    Wend.   66;    Matter   of 

ment  as  that  of  a  non-resident,  when  Warner,   3  Wend.   424;  Burgess    v. 


the  owner  has  declared  that  his 
home  is  in  another  state,  and  testi- 
fies that  his  wife  owns  a  house  and 
lives  there,  and  that  for  years  he 
has  frequently  visited  her  there. 
Also,  Farrow  v.  Barker,  3  B.  Mon. 
(Ky.)  217 ;  Naylor  v.  French,  4  Yeates, 
241. 

3  Bowers  v.  Ross,  55  Miss.  218.    The 


Clark,  3  Ind.  250 ;  Havis  u  Taylor,  13 
Ala.  324 ;  Watson  v.  Pierpont,  7  Mar- 
tin, 413 ;  Oflfutt  17.  Edwards,  9  Rob. 
(La.)  90;  Fitch  v.  Waite,  5  Ct.  *117; 
Matter  of  Schroeder,  6  Cow.  603; 
Matter  of  Fitzgerald,  2  Caines,  318 ; 
Pitts  V.  Boroughs,  6  Ala.  733 ;  Wai- 
cott  V.  Heudrick,  6  Tex.  400 ;  Ross  v. 
Clark,  32   Mo.    296 ;  Boggs  v.  Bind- 


defendant  may  show  that  he  still  has    skoflf,  23  111.  66 ;  Kingsland  v.  Wor- 


his  domicile  in  Mississippi,  with  in- 
tent to  return  to  it,  and  keeps  an 
establishment  within  the  state  where 
his  family  resides  and  where  process 
may  be  served  so  as  to  bind  him, 
though  he  has  a  fi.xed  abode  in  an- 
other state  for  an  indefinite  period. 


sham,  15  Mo.  657 ;  Ellington  v.  Moore, 
17  Mo.  424 ;  Boardman  v.  BickforJ. 
2  Aikens,  345;  Oliver  v.  Wilson, 
29  Ga.  642;  Robson  v.  Hunter,  90 
Tenu.  242  (explaining  Slatton  v. 
Johnson,  4  Hay,  200 ;  Welch  v.  Rob- 
inson,   10    Humpli.   264;    James    n 


g  45.]  ABSENCE    AND    NON-EESIDENCE.  33 

may  be  absent  on  the  business  of  looking  up  a  new  home  in 
another  jurisdiction,  his  property  does  not  therefore  become 
immediately  liable  to  attachment  as  that  of  a  non-resident, 
since  his  old  home  is  not  yet  relinquished  and  ordinary  pro- 
cess may  reach  him  there.^  While  a  brief  absence,  coupled 
with  the  facts  indicating  that  residence  within  the  state  has 
been  abandoned,  may  justify  attachment,'^  a  very  protracted 
stay  from  the  state,  even  extended  for  years,  is  not  necessarily 
a  fact  supporting  the  charge  of  non-residence,  since  the  ab- 
sentee may  all  the  time  maintain  a  place  of  residence  within 
the  state  at  which  ordinar}"  process  may  be  legally  served.^ 

§  45.  P resumption  of  non-resUleuce  from  absence. —  There  is, 
as  a  general  rule,  no  fixed  length  of  absence  which  will  of  it- 
self create  the  presumption  of  non-residency,  within  the  mean- 
ing of  the  attachment  laws  —  the  important  question  being 
whether  ordinary  process  can  reach  the  debtor  at  all  times  bv 
service  at  some  place  within  the  state  where  the  suit  is  brought.* 
So  long  as  there  is  such  a  place,  there  can  be  no  reason  why 
the  extraordinary  process  should  be  invoked  on  the  ground  of 
absence  or  non-residency,  unless  there  is  statutory  enactment 
making  absence  alone  a  legal  cause  for  attaching.  What  mat- 
ter if  the  absentee  is  acquiring  or  has  acquired  a  residence 
abroad?  He  may  have  more  than  one  residence;  and  there- 
fore it  cannot  be  inferred,  because  he  has  established  one  in 
another  state  or  country,  that  he  has  abandoned  the  place 
where  service  may  be  had  upon  him  in  the  state  where  the 
suit  against  him  is  instituted.  On  the  contrary,  absence  from 
the  state,  even  with  intent  to  return,  and  when  no  residence 
is  acquired  or  is  being  acquired  elsewhere,  may  render  a  debtor 
liable  to  have  his  property  attached  as  that  of  a  non-resident, 
when  the  circumstances  are  such  that  the  creditor  is  cut  off 

Hall,  1  Swan,  297 ;  Carlisle  v.  Cowan,  White,  23  Ind.  43 ;  Farrow  v.  Barker, 

85  Tenn.  165) ;  Labe  v.  Brauss,  13  Pa.  3  B.  Men.  217. 

Co.  Ct  255;  Fitzgerald  v.  McMurran  3  Egan  v.  Lumsden,  2  Disn.  (O.)  168. 

(Minn.),  59  N.  W.  199.  ■»  lu  Kentucky,  Arkansas  and  Colo- 

1  Pfoutz  V.  Comford,  36  Pa.  St.  420 ;  rado  four  months'  absence  is  a  ground 
Smith  V.  Story,  1  Humph.  420.          "  for  attachment ;    and  in    Michigan 

2  Morgan  v.  Nunes,  54   Miss.  308;  three  months' absence  and  non-resi- 
Wheeler  v.  Cobb,  75  N.  C.  21 ;  Taylor  dence. 

V.  Knox,  1   Dall,  158;  McCollem  v. 
3 


34  STATUTOEY    GROUNDS.  [§  4G. 

from  the  benefit  of  ordinary  process  to  make  his  money.^  The 
debtor  must  be  so  situated  at  the  time  the  suit  is  to  be  served 
that  he  can  be  reached  at  some  place  of  residence,  if  he  would 
avoid  the  extraordinary  process.  It  is  at  that  particular  time  — 
when  the  attachment  proceeding  is  begun  —  that  he  must  be 
a  resident  if  he  would  avoid  such  process.^  It  would  not  avail 
him  to  become  a  resident  at  a  later  period ;  to  show  that  he 
was  absent  without  a  place  in  the  state  for  service  when  his 
goods  were  attached  but  that  he  returned  soon  thereafter;  or 
that  he  is,  at  the  time  of  the  trial,  or  the  traverse  of  the  at- 
tachment, a  resident  of  the  state  with  the  design  of  remaining 
piermanently. 

§  46.  Infarence  from  facts. —  As  in  the  case  of  a  new-comer, 
acquiring  residence,  the  aniimis  of  the  debtor  is  of  importance 
in  deciding  whether  or  not  he  is  a  resident,  so  when  a  person 
leaves  the  state  his  intent  is  often  decisive  of  the  question 
whether  or  not  he  has  abandoned  his  residence  therein.  As 
previoush'"  remarked  in  another  connection,  one  immediately 
becomes  a  non-resident  if  he  leaves  his  state  with  the  design 
of  becoming  such,^  though  the  design  has  been  held  not  to  be 
decisive  on  this  question  until  accompanied  with  the  act  of 
leaving ;  until  he  has  passed  beyond  the  state  bounds.*  But 
if  he  has  broken  up  his  home,  so  that  process  can  no  longer 
be  served  there  and  be  binding  upon  him,  must  his  creditor 
be  confined  to  personal  service  upon  his  debtor  as  the  only 
means  of  reaching  him?  The  case  is  not  that  of  an  abscond- 
ing debtor ;  the  plaintiff  cannot  truthfully  set  up  the  ground, 
in  his  afiidavit,  that  the  defendant  is  running  away  to  avoid 
process,  concealing  himself,  hiding  his  goods,  etc.,  in  fraud  of 

1  Ludlow  V.  Ramsey,  11  Wall.  581.  »  Moore  v.  Holt,  10  Gratt.  284;  Bal- 
Held  that  property  could  be  attached    linger  v.  Lautier,  15  Kan.  608. 

as  that  of  a  non-resident  because  of  ^  Ballinger  v.  Lautier,  15  Kan.  608; 
its  owner  being  out  of  the  state  and  Kugler  v.  Shreve,  28  N.  J.  L.  129; 
in  the  confederate  army.  Also,  Fore-  Kingsland  v.  Worsham,  15  Mo.  657 ; 
man  v.  Carter,  9  Kan.  674.  Contra,  Temple  v.  Cochran,  13  id.  116;  Smith 
Haynes  v.  Powell,  1  Lea  (Tenn.),  347.  v.  Story,  1  Humph.  420 ;  Stratton  v.. 
But  not  if  he  is  in  the  fedex'al  army.  Brigham,  2  Sneed,  420 ;  Lyle  v.  Fore- 
Tibbits  V.  Townsend,  15  Abb.  Pr.  221 ;  man,  1  Dall.  480 ;  Bainbridge  v.  Aid- 
Thompson's  Case,  1  Wend.  43 ;  Weit-  erson,  2  Browne,  51 ;  Wheeler  v. 
kamp  V.  Loehr,  53  N.  Y.  Superior  Ct  Degnan.  2  Nott  &  McC.  323 ;  Ship- 
79.  mau  v.  Woodbury,  2  Miles,  67 ;  Reddy 

2  Clark  V.  Arnold,  9  Dana,  305,  v.  Bego,  33  Miss.  529. 


§§  47,  48.]  ABSENCE    AND   NON-RESIDENCE.  35 

creditors.  The  defendant  avowedly  means  to  abandon  his 
residence,  which  he  may  lawfully  do,  and  has  broken  up  his 
home,  and  is  openly  traveling  towards  the  state  bounds  to 
depart  permanently.  Why  should  not  the  extraordinary 
process  be  invokable  on  the  ground  of  non-residence?^ 

§  47.  No  fixed  abode. —  It  is  conceivable  that  a  person  may 
never  have  been  out  of  his  native  state  yet  have  no  fixed  place 
of  abode  within  it  where  ordinary  process  may  be  legally  served 
upon  him  when  he  cannot  be  personally  served  with  summons. 
His  biisiness  may  require  him  to  travel  constantly  from  county 
to  county,  to  sojourn  at  hotels  for  but  a  few  hours  at  a  time, 
so  that  no  particular  place  could  be  called  his  home.  Whether, 
under  such  circumstances,  his  property  would  be  liable  to  at- 
tachment on  the  ground  of  non-residence,  must  depend  upon 
the  attachment  statute  of  his  state  (as  indeed,  in  all  other 
cases),  but  there  would  seem  to  be  no  reason,  on  general  prin- 
ciples, why  his  property  ought  not  to  be  made  liable  to  attach- 
ment. 

§  48.  Only  by  his  property  can  a  non-resident  debtor  be 
reached  and  made  to  pay.^  If  he  is  temporarily  present,  a 
summons  may  reach  him,  to  be  sure ;  but  of  what  avail  would 
that  be  if  his  property  is  not  attached,  or  if  he  has  none  within 
the  state  to  be  attached?  If  he  has  residence  in  another  state 
or  country,  he  may  plead  to  the  jurisdiction  of  the  state  court 
where  the  ordinary  suit  is  brought.  Or,  he  could  readily  re- 
turn to  his  home  and  take  his  property  with  him,  so  that  there 
would  be  nothing  left  within  the  jurisdiction  upon  which  the 
judgment  could  be  executed.  The  necessity,  therefore,  for  the 
use  of  the  writ  of  attachment,  by  which  his  property  is  con- 
served and  held  under  a  hypothetical  lien  till  judgment,  is  ob- 
vious, though  the  non-resident  debtor  be  personally  served 
with  summons.  Ordinary  process,  though  it  may  be  served 
in  such  case,  would  not  prove  effectual ;  and  hence  the  ex- 
traordinary is  permitted  and  authorized. 

The  reader  will  readily  ])erceive  that  it  would  be  almost  an 
endless  task,  were  the  many  curious  facts  of  cases,  involving 

1  Sec,  favoring  this  view,  Clark  v.        2  Winstonly  v.  Savage,  2  McCord, 
Ward,    12  Gratt.    440;    Spalding    v.     Ch.  (S.  C.)  425. 
Sinims,  4  Met.  (Ky.)  285.     See,  also, 
Moore  v.  Holt.  10  Grattw  284. 


36  STATUTORY    GROUNDS.  [§§  49,   50. 

the  attachability  of  non-residents'  property,  to  be  given  b}'" 
way  of  illustration  in  a  text-book.  It  seems  better  to  rely 
upon  the  general  rule  that  the  facts  must  be  such  as  to  render 
the  conservative  process  necessary,  under  the  statute  provis- 
ion.^ 

§  49.  In  every  state  the  writ  of  attachment  may  be  sued 
out  against  a  non-resident.  It  is  nowhere  required  that  the 
affiant  should  swear  that  the  debtor  has  become,  or  continues 
to  be,  a  non-resident  for  the  purpose  of  hindering  or  defraud- 
ing the  creditor,  or  of  preventing  the  collection  of  the  debt. 

]^o  charge  or  implication  of  fraud  on  the  part  of  the  non- 
resident need  appear  in  the  affidavit  made  for  the  attachment 
of  his  property.  He  may  be  honest,  admitted  by  the  plaintiff 
to  be  such,  yet  liable  to  have  his  property  attached  because 
the  plaintiff  can  proceed  effectively  in  no  other  way.  It  is 
solely  because  he  cannot  be  summoned  that  his  property  is 
attached ;  his  accidental  presence,  when  he  ma}^  be  summoned, 
forming  no  exception,  as  has  already  been  shown.- 

TV.  Debtors     Absconding    or    Concealing    Themselves    to 

Avoid  Process. 

§  50.  Avoidance  of  iirocess. —  The  statutes,  though  employ- 
ing varying  expressions,  are  generally  uniform  in  authorizing 
the  attachment  of  the  property  of  a  debtor  who  endeavors  to 
avoid  the  process  by  absconding  or  by  concealing  or  secreting 
himself.  Some  of  the  statutes  make  each  of  these  methods 
of  avoidance  a  distinct  ground  for  attachment;  others  connect 
the  latter  two,  and  keep  the  first  distinct ;  others  specify  but 

1  Branch    Bank  v.   McDonald,    23  Dall.  305,  ?io/e  (in  which  it  was  said 

Ala.  474 ;  Zerega  v.  Benoist,  7  Robt.  that  the  effects  of  an  American  con- 

(N.  Y.)  199;  Knox  V.  Mason,  3  id.  08 1 ;  sul,  residing  abroad,  were  liable  to 

McKenzie  v.    Bentley,  30  Ala.  139 ;  foreign    attachment) ;     Spalding    v. 

Coosa  River  St.  Bt.  Co.  v.  Barclay,  30  Simms,  4  Met.  (Ky.)  285;  Railroad  v. 

id.  120 ;  Tallemon  v.  Cardenas,  14  La.  People,  31  Ohio  St.  542. 

Ann.  509 ;  Sandel  v.  George,  18  id.  526 ;  -  See  further  as  to  non-residence, 

Clark  V.  Pratt,  19  id.  102 ;  Surty  v.  Skil-  Quebec  Bank  v.  Carroll,  1  S.  D.  372 ; 

ton,  19  id.  36;  Redwood  u  Consequa,  Garden    v.    Garden,   107  N.    C.  214; 

2  Browne  (Pa.),  62 ;  Allen  v.  Wright,  Lamson    v.    Adiard,   46  Minn.   243; 

134  Mass.  347 ;  Brolaskey  v.  Landers,  distinguishing  Keller  v.  Carr,  42  N. 

2  Miles  (Pa.),  371  ;  Shugart  v.  Orr,  5  AV.  292. 
Yerg.    192;   Caldwell   v.    Barclay.   1 


§  51.]  DEBTORS    ABSCOXDING,  ETC.  37 

one  of  the  three;  bat  all  unite  in  giving  the  remedy  when  the 
intentional  avoidance  of  process  by  hiding  or  absconding  is 
made  to  appear.     Absence  may  be  under  such  circumstances 
as  to  justify  the  charge  of  absconding  to  defraud  creditor, 
though  the  affidavit  may  have  been  made  on  information  and 
belief.^     It  has  been  held  that  if  one  has  secreted  himself  or 
has  run  away  from  the  state  to  avoid  a  criminal  arrest,  his 
))roperty  may  be  attached  by  civil  process,  as  though  he  had 
gone  to  avoid  such  process.-    The  general  rule,  however,  is 
that  the  debtors  secreting  himself  or  absconding  must  be  to 
avoid  personal  civil  service,  in  order  to  afford  ground  for  at- 
tachment.*    When  attachment  has  been  made  on  the  ground 
that  the   defendant   evades  service,  it  may   be   maintained 
though  he  be  served  on  the  same  day  the  levy  was  made.*     In 
states  where  attachment  is  an  ordinary  civil  process  in  all 
cases  upon  contract  or  for  debt,  no  special  statute  authoriza- 
tion, based  upon  this  ground,  may  be  found ;  but  they  consti- 
tute no  exception,  since  attachment  will  there  lie  against  the 
property  of  an  absconding  or  secreted  debtor,  under  the  com- 
mon practice,  though  not  there  a  special  ground  of  attachment. 
§  51.  Xotwithstanding  the  general  uniformity  of  the  stat- 
utes, there  are  minor  differences;  some  treating  absconding 
as  running  away  from  the  state  to  avoid  process,  while  others 
treat  it  as  running  away  from  the  county  or  the  usual  place 
of  abode. 

Nearly  every  state  statute  on  attachment  requires  that  the 
creditor,  when  charging  that  his  debtor  has  absconded  or  con- 
cealed himself,  or  is  about  to  do  so,  shall  qualif}"  the  charge 
with  the  words,  "so  that  ordinary  process  cannot  be  served," 
or  equivalent  words.  "  With  intent  to  escape  process,"  "  to 
elude  summons,"  "so  that  ordinary  process  cannot  be  effect- 
ive," "to  avoid  and  defraud  creditors,"  etc.,  are  phrases  fre- 
quently found  in  the  statutes,  which  may  be  instanced  as 
equivalents  of  the  qualifying  words  above  mentioned. 

1  Buell  V.  Van  Camp,  119  N.  Y.  160.     247 ;  Lynde  v.  Montgomery,  15  Wend. 

2Malone  v.  Handley,  81  Ala.  117;  461;  Fitch  v.  Waite,  5  Ct.  117;  North 
Starke  v.  Scott,  78  Va.  180 ;  Bank  of  v.  McDonald,  1  Biss.  57 ;  United 
Commerce  v.  Payne,  86  Ky.  446.  States  v.  O'Brien,  3  Dillon.  381. 

3  Evans  v.  Saul,  8  Martin  (La. ),  N.  S.        *  Giddiugs  v.  Squier,  4  Mackey  (D. 

C),  49. 


38  STATUTOEY   GROUNDS.  [§  52. 

§  52.  The  gist  of  the  charge  is  that  the  debtor,  by  his  own 
act,  has  rendered,  or  will  render,  ordinar}^  process  ineffectual. 
And  if  this  is  true,  it  would  matter  little  whether  lie  has  es- 
caped from  the  state  or  from  his  county,  unless  the  former  is 
necessary  to  the  granting  of  the  writ  under  any  particular 
statute.  JS'or  would  it  matter  that  he  has  a  place  of  usual 
abode  where  a  summons  ma3'^  be  left ;  for,  if  it  is  true  that  he 
is  hiding  himself,  or  running  off,  to  avoid  summons,  it  is  quite 
likely  that  he  would  also  run  off  his  property,  or  dispose  of 
it  in  some  way,  before  ordinary  process  could  result  in  judg- 
ment and  execution.  The  law  authorizes  attachment  on  the 
ground  of  fraudulent  absconding,  etc.,  even  though  the  ab- 
sconding debtor  should  be  reached  by  summons,  upon  the 
required  showing  that  ordinary  process  would  not  certainly 
prove  effective. 

When  the  application  is  made  and  the  writ  granted,  it 
cannot  be  known  certainly  that  summons  will  not  reach  the 
debtor.  It  is  highly  probable  that  it  will  reach  him  person- 
ally, when  the  charge  is  that  he  is  about  to  abscond  or  conceal 
himself.  The  legislator  does  not  mean  to  confine  the  remedy 
of  domestic  attachment  to  cases  where  the  defendant  cannot 
be  personally  served,  but  to  those  in  which  ordinary  process 
is  not  so  good  a  remedy  as  the  extraordinary. 

To  entitle  the  plaintiff  to  an  attachment  on  the  ground  that 
his  debtor  has  absconded,  it  is  not  ordinarily  required  of  him 
first  to  obtain  an  officer's  return  that  the  debtor  cannot  be 
found.i  When  such  return  is  required,  the  practice  is  excep- 
tional.^ There  may  be  absconding  without  leaving  the  state. 
Kemoving  from  home  with  the  design  of  avoiding  summons 
and  of  defrauding  the  creditor  is  what  is  generally  understood 
by  absconding.'' 

1  North  V.  McDonald,  1  Biss.  57.  his  just  debts  shall  be  considered  as 

2  Rev.  Stat,  of  Rhode  Island,  ch.  having  absconded "  (Md.  Code,  art. 
178 ;  Rev.  Stat,  of  Delaware,  ch.  104 ;  10,  §  3)  is  construed  to  entitle  the 
Barney  u  Patterson,  6  Har.  &  J.  (Md.)  creditor  to  the  writ  of  attachment 
183.  when  the  debtor  has  left  his  home 

'Stouffer    V.    Niple,   40  Md.   447:  with  such  intent,  though  he  may  not 

The    statute    prescribing    that    the  have  left  the  state.    On  the  same 

debtor  who  shall  "secretly  remove  subject,  consult  Mandell  v.  Peet,  18 

himself  from  his  place  of  abode  with  Ark.  236 ;  Branson  v.  Shinn,  13  N.  J. 

intention  to  evade  the  payment  of  L.  250 ;  City  Bank  v.  Merritt,  id.  131 ; 


§§  53,  oJr.]  DEBTOKS   ABSCONDING,  ETC.  39 

§  53.  JRemoval. —  Mere  removal  to  another  county,  without 
fraudulent  intent,  is  not  a  ground  for  attachment,^  though  it 
has  been  held  that  a  non-resident  traveler  passing  through  a 
county  is  removing  therefrom  so  as  to  be  liable  to  have  his 
effects,  which  he  is  taking  with  him,  attached  on  the  ground 
"that  he  is  actually  removing  from  the  county."-  A  busi- 
ness corporation  or  company,  when  authorized  to  do  business 
as  an  artificial  person  in  a  county,  may  be  sued  by  attachment 
on  the  ground  of  being  about  to  remove  permanently,  though 
the  partners  or  members  of  the  corporation  have  never  lived 
in  the  county.^  Permanent  removal  is  ordinarily  what  the 
law  means  when  authorizing  the  ground.^  It  is  not  sufficient 
to  swear  that  the  debtor  is  already  in  another  state  and  is 
about  to  sell  or  remove  his  property,  when  this  ground  is 
made  the  basis  of  the  attachment.^ 

In  Kentucky  it  was  held  that  in  an  action  for  the  recovery 
of  money,  against  several  partners,-  when  some  one  of  them 
has  departed  from  the  state  with  intent  to  defraud  his  cred- 
itors, or  has  concealed  himself  so  that  a  summons  cannot  be 
served  upon  him,  the  plaintiff  is  entitled  to  an  attachment 
against  the  propert}''  of  all  the  defendants."  In  Xew  Jersey, 
held  that  an  attachment  will  not  lie  against  an  absent  or  ab- 
sconding joint-debtor  or  partner,  if  one  or  more  of  the  joint- 
debtors  or  partners,  liable  for  the  same  debt,  reside  within 
the  state.' 

§  54.  Hiding. —  Secreting  himself,  hiding  from  the  creditor 
or  the  officer  who  is  to  serve  process,  going  from  home  to 
avoid  summons,  shutting  himself  up  at  home,  and  all  such 
acts  of  a  debtor,  are  included  in  the  general  term  "  abscond- 
ing;" and  it  is  not  necessary  to  the  right  of  attaching  that 
he  should  have  run  away  from  the  state.^ 

Bennett  v.  Avant,  2  Sneed  (Tenn.),  6  Mills  v.  Brown,  2  Met.  404 ;  Dun- 

153;  Fitch  v.  Waite,  5  Ct.  117.  can  r.  Headley,  4  Bush,  45. 

iMeek  v.  Fox.  42  Miss.  513.  'Barber  v.  Eobeson,  15  N.  J.  L.  17. 

2  Johnson  v.  Lowrj-,  47  Ga.  560,  sjves  v.  Curtis,  2  Root  (Ct),  133; 

SRuthven  v.  Beckwith,  84  Iowa,  Fitch  v.  Waite,  5  Ct  117;  House  v. 

715.  Hamilton,  43  111.  185;  Young  v.  Nel- 

*  Warder  r.  Thrilkekl,  52  Iowa,  134.  son.  25  id.  565;  Nutter  i7.  Conuet,  3 

5  State    V.    Morris,    50    Iowa,    203.  B.  ]Mon.  199 ;  Dunn  v.  Salter,  1  Duv. 

The  absconder  is  not  a  non-resident  (Ky.)   342 ;    Field  v.  Adreon,  7  Md. 

Lindsey  r.  Dixon,  22  Mo.  App.  291.  209 ;  Fitzgerald's  Case,  2  Cai.  (N.  Y.) 


40  STATUTORY    GROUNDS.  [§§  55,  56. 

The  circumstances  are  rare  under  which  one  who  is  not  a 
resident  can  be  deemed  an  absconder.^  However,  if  one  is  a 
resident  in  such  a  sense  that  he  is  subject  to  ordinarj^  process, 
yet  seeks  to  avoid  it  by  secreting  himself,  he  might  be  prop- 
erly charged  with  absconding,^ 

§  55.  Purpose  to  avoid  creditors. —  It  is  not  required  of  the 
attaching  creditor  that  he  should  charge  removing  or  ab- 
sconding for  the  purpose  of  eluding  his  summons,  or  defraud- 
ino^  himself;  the  charge  of  removino-  to  defraud  creditors  is 
sufficient,  as  a  general  rule,  under  the  several  statutes.  Ee- 
moval  from  the  county  to  elude  one  creditor  justifies  attach- 
ment by  another  creditor,^  If  the  debtor  has  shown  himself 
untrustworthy,  and  capable  of  trying  to  evade  the  law  and 
avoid  the  payment  of  one  just  debt,  there  is  good  reason  for 
issuing  the  conservative  writ  to  secure  another.  But  where 
the  statute  requires  the  creditor  to  swear  that  the  removing, 
secreting,  absconding,  etc,  from  the  place  of  abode  is  to  in- 
jure himself,  and  to  elude  him,  and  evade  the  law  with  respect 
to  his  claim,  the  averments  must  be  made  and  sworn  accord- 
ingly. 

No  injustice  need  be  done  the  defendant,  since  he  is  secured 
against  loss  in  most  of  the  states  by  the  creditor's  bond; 
and  he  is  at  liberty  to  traverse  the  affidavit,  and  may  deny 
that  he  has  illegally  removed  himself  from  his  abode  or  from 
his  county  (as  the  charge  may  be),  or  that  he  is  about  to  go ;  or, 
admitting  having  gone,  he  may  aver  that  his  absence  was 
temporary  and  without  fraudulent  design ;"*  for  ''removal" 
means  permanent  removal.^ 

§56,  AJ)Out  to  ahscond. —  Most  of  the  statutes  are  rather 
vague  in  their  use  of  the  phrase,  "  about  to  abscond."  About 
to  do  so  —  when?  Is  it  to-day,  to-morrow  or  next  week?  Is 
it  at  some  time  before  a  judgment  lien  can  be  obtained  by 
following  up  ordinary  process?     Perhaps  no  more  definite 

318;  Jemel  v.  Howe,  3  Watts  (Pa.),  2  Middlebrook  v.  Ames,  5  Stewart 

144 ;  Thurneyssen  v.  Voathier,  4  id.  &  Porter,  158. 

423;  Wray  v.  Gilmors,  1  Miles  (Pa.),  3Sherrill  v.  Beach,  37  Ark.  560. 

75;    Boggs  V.  Bindskoflf,  23  111.  66;  4  Kiepper  r.  Powell,  6  Heisk.  (Tenn.) 

Giddings  v.  Squier,  4  Mackey,  49.  503 ;  Gill  v.  Wyatt,  id.  88. 

1  Shugart  v.  Orr,  5  Yerger,  192.    See  &  Warder  v.  Thrilkeld,  52  Iowa,  134. 
Matter  of  Schroeder,    6    Cow.  603; 
Matter  of  Fitzgerald,  2  Gaines,  318. 


§  57.]  FRAUDULENT   DISPOSITION    OF    PROPERTV.  -il 

period  can  be  fixed  upon,  by  way  of  construing  the  phrase, 
than  that  last  suggested  by  inquiry.  If  the  debtor  is  about  to 
go  before  the  ordinary  judgment  heu  can  be  created  in  due 
course,  there  is  reason  for  creating  the  hypothetical  attach- 
ment lien  at  once.^ 

Absconding  requires  the  act  as  well  as  the  animus;  though 
being  "about  to  abscond"  is  complete  without  action.^  The 
intent,  being  difficult  of  direct  proof,  may  be  inferred  from 
circumstances;^  and  the  defendant  is  entitled  to  the  credit  of 
circumstances  in  his  favor.* 

V.  Fraudulent  Disposition  of  Property  to  Avoid  Creditors. 

§  57.  Statute  iwovisions. —  The  statutes,  with  great  uni- 
formity, accord  the  attachment  remedy  wiien  the  debtor 
seeks  to  elude  the  effect  of  ordinary  process  by  secreting,  re- 
moving or  otherwise  fraudulently  disposing  of  his  property 
within  the  state,  or  by  removing  it  out  of  the  state  so  tliat 
the  creditor  is  in  danger  of  losing  his  claim  or  of  being  neces- 
sitated to  sue  in  another  state.  The  writ  is  accorded,  w^iether 
the  debtor  has  done  such  acts  or  is  about  to  do  them  for  the 
purpose  stated.  The  authorizations  vary  in  different  states; 
but  the  ground,  that  the  debtor  is  about  to  conceal  or  remove 

1  Elliott  V.  Keith,  32  Mo.  App.  579 ;  -  See,  on   absconding,  and  '•  about 
Myers  v.  Farrell,  47  Miss.  281 :  Held  to  abscond,"  and  the  requisites  for 
that  the  leading  purpose  of  the  stat-  charging  these  grounds :  Bennett  v. 
ute  granting  attachment  when  debt-  Avant,  2  Soeed  (Tenn.),  152. 
ors  are  about  to  remove  their  persons  ^(jibson  v.  McLaughlin,  1  Browne, 
or  property  out  of  the  state  with  in-  292 ;    Ross    v.    Clark,    32    Mo.    296 ; 
tent  to  evade  the  payment  of  debt  is  Young  v.  Nelson,  25  111.  565. 
to    authorize    proceedings    in   rem;  *  Myers    v.   Farrell,  47    Miss.    281 ; 
and  that  any  attempt  to  fix  a  definite  Boardman    v.    Bickford,   2    Aikens, 
rule  as  to  the  time  within  which  the  345 ;  Matter  of  Warner,  3  Wend.  494 ; 
inquiry  is  to    be  limited   would  be  Havis  v.  Taylor,  13  Ala  324;  Bur- 
hurtful  to  practice  and  might  defeat  gess  v.  Clark,  3   Ind.  250.     And  see 
the  remedy  in  meritorious  cases.   All  further :  Morgan  t'.  Avery,  7  Barb, 
that  is  necessary  is  that  the  ground  656 ;  Simons  v.  Jacobs,  15  La.  Ann. 
of  attachuieut  shall  exist  when  the  425;  Reeves  v.  Comly,  3  Rob.  (La.) 
writ  is  sued  out     If  the  fraudulent  363 ;  N.  O.  Canal  &  Banking  Co.  v. 
design  to  remove  then  exists,  attacli-  Comly,  1  id.  231 ;  Bennett  v.  Avant, 
raent  will  lie,  though  the  debtor  may  2  Sneed,  153. 
not  mean  to  carry  out  his  design  for 
several  weeks  or  mouths. 


42 


STATDTOKT   GROUNDS. 


[§58. 


or  dispose  of  his  property  to  defraud  the  creditor,  is  ahnost 
universal.  These  general  terms  include  the  fraudulent  assign- 
ment of  property,  withholding  it,  simulated  sales  of  it,  and 
like  acts  tending  to  defeat  the  usual  course  of  justice. 

§58.  Inferences. —  From  proof  of  suspicious  facts  it  may 
often  be  inferred  that  the  disposition  is  fraudulent  and  that 
ordinary  process  has  been  made  impracticable,  and  thus  the 
statutory  ground  may  be  supported.^ 

The  fraudulent  withholding  of  property  from  ordinary  pro- 
cess is  inferable  from  an  evil  intent  to  delay  creditors ;  not 
from  mere  refusal  to  pay  debts,^  or  from  false  promises  to 
pay.^ 

Knowledge  of  fraud  on  the  part  of  the  purchaser  from  a 
debtor  may  be  inferred  from  circumstances ;  *  but  facts  unim- 
portant and  not  inconsistent  with  the  hypothesis  of  fair  deal- 
ing are  not  sufficient  to  support  the  attachment.^  The  debt- 
or's withdrawal  of  his  deposit  from  bank,  and  his  departure 
from  the  state,  leaving  debts  but  no  property  behind  him,  do 


•  Wildman  v.  Van  Gelder,  60  Hun, 
443 ;  Nelvitter  v.  Mansell,  60  id.  578 ; 
Union  Dis.  Co.  v.  Ruser,  60  id.  583 ; 
Jaflfray  v.  Nast,  57  id.  585 ;  Thomp- 
son V.  Dater,  id.  316 ;  German  Bank 
V.  Meyer,  55  id.  86 ;  Johnston  v.  Fer- 
ris, 14  Daly,  303 ;  Mayne  v.  Savings 
Bank;  80  la.  710;  Hardie  v.  Colvin, 
43  La.  Ann.  851 ;  Wilson  v.  Dockery 
(Miss.),  12  So.  585 ;  Aikwith  v.  Allen, 
33  Neb.  418 :  Smith  v.  Boyer,  29  id. 
76 ;  Hanks  v.  Andrews,  53  Ark.  327 ; 
Forlina  v.  Troolicht  (N.  M.),  21  P. 
703;  Meyer  v.  Black,  4  N.  M.  190; 
Eby  V.  Watkins,  39  Mo.  App.  27; 
Rainwater  v.  Faconesowitch,  29  id. 
26;  Warner  v.  Kade,  15  id.  600; 
Buford.  etc.  v.  McWhorter,  41  Kan. 
262 ;  Kleine  v.  Nie,  88  Ky.  542 ;  Flow- 
ers V.  Miller  (Ky.),  16  S.  W.  705; 
Bank  v.  Payne,  86  Ky.  446 ;  Bacon  v. 
Stone  Co.,  5  Ohio  Cir.  Ct.  289 ;  Camp- 
bell V.  Jackson,  80  Wis.  48.  (See 
Palmer  v.  Hawes,  80  id.  474.)  Little- 
john  V.  Jacobs,  66  id.  600 ;  Keith  v. 
Armstrong,    65    id.   225 ;    Kahn    v. 


Angus,  61  id.  264;  Wingo  v.  Purdy, 

87  Va.  472;  Weaver  v.  France,  3 
Wyo.  273.  On  the  facts  stated  in  the 
following  cases  it  was  held  that 
fraud  could  not  be  inferred :  Singer 
V.  Lidwinosky,  36  111.  App.  843 ;  Ten- 
ney  v.  Diss,  36  Neb.  61 ;  Thomas  v. 
Dickinson,  58  Hun,  603;  Thompson 
V.  Dater,  57  id.  585 ;  Robinson  v. 
Hunter,  90  Tenn.  242;  Fisher  v. 
Williams,  56  Vt.  586 ;  Clark  v.  Ingra- 
ham,  15  Phila.  646 ;  Burruss  v.  Trant, 

88  Va.  980;  Wyman  v.  Wilmarth, 
1  S.  D.  172 ;,  May  v.  Newman  (Mich.), 
55  N.  W.  364 ;  Collier  v.  Hanna,  71 
Md.  253. 

2  Durr  V.  Jackson,  59  Ala.  203. 

8  Parsons  v.  Stockbridge,  42  Ind. 
121. 

*  Roos  V.  Lewyn  (Tex.),  23  S.  W. 
450. 

5  Mack  V.  Jones,  31  Fed.  189 ;  Myers 
V.  Whiteheart,  24  S.  C.  196 ;  Willis  v. 
Lowry,  66  Tex.  540 ;  Heideman,  etc. 
V.  Urner,  24  Mo.  App.  534. 


§§  59,  CO.]        FRAUDULENT   DISPOSITION    OF    TKOPERTY.  43 

not  necessarily  show  fraud.  The  test  of  a  transaction  is 
whether  it  was  done  in  good  faith. ^  Fraud  is  often  a  mixed 
question  of  law  and  fact.-  If  there  are  no  facts  in  evidence  on 
which  fraud  can  be  predicated,  it  is  erroneous  for  the  court  to 
give  instructions  to  the  jury  as  to  fraud  ;'^  but  if  the  plaintiff 
has  introduced  evidence  to  prove  that  the  defendant's  trans- 
fer to  a  claimant  was  fraudulent,  it  is  error  to  direct  the  jury 
to  find  for  the  claimant.^  Construction,  as  to  fraud,  is  not 
different  in  attachment  cases  from  that  in  others. 

The  statutory  presumption  of  fraud  when  the  vendor  con- 
tinues in  possession  may  be  repelled  by  evidence.^ 

§  59.  Concealment —  The  denial  by  the  debtor  that  he  has 
received  money,  though  false,  is  not  a  concealment  of  it." 

An  insolvent  hid  mone}^  by  advice  of  his  counsel,  to  enable 
himself  to  defend  against  anticipated  attachment  proceedings : 
this  was  held  to  be  ground  for  attaching.'  When  a  defendant 
wilfully  concealed  propert}'-  that  had  been  attached,  to  defeat 
the  judgment  creditor,  he  was  mulct  in  damages  to  double  the 
value  of  the  property  concealed  under  a  statute  providing 
such  penalty  in  case  the  property  be  not  produced  to  satisfy 
the  process.^ 

If  the  debtor  is  about  to  conceal  a  part  of  his  property  to 
hinder  or  defraud  his  creditors,  it  is  sufficient  ground.' 

§  GO.  The  cltarf/e  of  intent  to  remove,  etc. —  The  charge  is 
not  confined  to  any  particular  time,  provided  the  accomplish- 
ment of  the  intent  would  defeat  the  legitimate  result  of  ordi- 
nary process;  that  is,  if  the  defendant  is  substantially  charged 
with  the  design  of  putting  his  property  beyond  the  reach  of 
the  creditor  before  he  can  obtain  an  ordinar}'-  judgment  and 
seize  it  under  execution,  it  will  be  a  sufficient  compliance  with 

1  Huuter  v.  Ferguson  (Colo.),  33  P.  *  St.  Louis  Wire  Mills  v.  Lindheim 

82,  84;  Lloyd  r.  Fulton,  91  U.  S.  485;  (Tex.).  18  S.  W.  675. 

Humes  v.  Scruggs,  94  U.  S.  23.  spi-gntiss  v.  Schirmer,  136  N.  Y. 

'  Hunter  v.  Ferguson,  supra;  Petti-  305. 

bone  V.  Stevens,  15  Ct.  26 ;  Otley  v.  ^  Rohan  v.  Latimore,  18  Mo.  App. 

Manning,  9  East,  64 ;  Sturtevant  v.  16. 

Ballard,  9  Johns.  342.  "  Matthews  v.  Loth,  45  Mo.  App. 

^  Hunter  v.  Ferguson,  supra;  Bur-  455. 

lock  V.  Cross.  16  Colo.  162;  Lawson  8  Scott  v.  Morgan,  94  N.  Y.  508. 

V.  Van  Auken,  0  id.  62 ;  Thatcher  v.  ^  Flannagan  v.  Donaldson,  85  Ind. 

Kaucher,  2  id.  699 ;  Allen  v.  Eldridge,  517. 
1  id.  288. 


44:  STATUTOliY    GKOCXDS.  [P  Gl. 

the  statutory  requirement. '  The  design  must  be  charged  as 
existing  at  the  time  the  alfidavit  is  made,  in  order  to  a  strict 
compliance  with  the  statute  authorizing  attachment.-  Distinc- 
tion may  be  clearly  drawn  between  a  fraudulent  design  and  a 
fraudulent  act,  considered  as  attachment  grounds.  The  cllcct 
determines  rather  than  the  intent.'  In  a  charge  of  fraudulent 
disposition,  it  is  the  intent  of  the  debtor,  not  that  of  the  re- 
cipient, which  gives  ground  for  attaching.*  Sometimes  the 
intent,  or  even  consummated  fraud,  may  be  too  remote  to  jus- 
tif}'^  the  charge  for  the  purpose  of  attaching.* 

The  charge  of  removing,  assigning  or  otherwise  disposing  of 
property,  or  intent  to  do  so,  need  not  be  made  with  reference 
to  all  of  the  debtor's  creditors,  or  to  all  of  his  property.  It 
is  sulRcient  if  the  design  is  to  fraudulently  dispose  of  a  part 
of  the  property,  and  if  it  is  to  defraud  the  plaintiff  only.*^ 
However,  where  the  statute  requires  that  the  charge  of  fraud- 
ulent disposition  of  property  shall  be  qualified  with  the  clause, 
"  Without  leaving  sufficient  to  satisfy  the  plaintiffs  demand ;  " 
or,  "  So  as  to  defeat  ordinary  process,"  or  like  provisions,  it 
would  not  be  a  compliance  with  the  law  to  charge  merely  that 
the  defendant  has  fraudulently  assigned^  or  removed,  or  is 
about  to  assign  or  remove,  or  intends  to  assign  or  remove,  a 
2>art  of  his  property. 

§61.  Removal  of  2>*'ope}  t}/. —  The  debtor's  removal  of  his 
property  from  the  state  to  defeat  creditors,  when  not  leaving 
enough  within  the  state  to  satisfy  their  demands,  is  a  common 

1  Fraudulent    design    to     remove        *  Miller  v.  McNair,  65  Wis.  452. 
property  from  the  state  is  a  ground        *  Hersbfield  v.  Lowenthal,  35  Kar. 
for  attaching  it,  though  the  debtor    407. 

may  not  mean  to  remove  it  for  some  ^  Iq  Oregon,  if  the  debtor  is  about 

weeks  or   moutha     The   time   must  to  dispose  of  his  goods  to  defraud  tlie 

not  be  too  closely  circumscribed.     It  plaintiff,   attachment    against  them 

is   sufficient    if    the    ground    exists  will  lie,   though    no    fraud  against 

when  the  writ  is   issued.     The  pur-  creditors  in  general  may  be  designed, 

pose  of  the  legislator  was  to  author-  Haiglette  v.  Leake,  Deady,  469.     In 

ize  proceedings   in  rem.     Myers  v.  Kansas,  the  assignment  of  any  por- 

Farrell,  47  Miss.  281.  tion  of  the  debtor's  property  to  de- 

2  Lewis  V.  Kennedy,  3  G.  Greene  fraud  creditors  is  a  ground  for  at- 
(lowa),  57;  Warner  v.  Everett,  7  B.  tachment  Johnson  v.  Laughlin,  7 
Hon.  262.  Kan.  359.     Taylor  v.  Myers,  34  Mo. 

3  Douglass  V.  Cissna,  17  Mo.  App.  81. 

44;  Bullone  v.   Smith,   73   Mo.  151;        'Hinds  v.  Fagebank,  9  Minn.  6& 
Raid  V.  Pelletier.  28  id.  177. 


§§  62,  63.]       FRAUDULENT   DISPOSITION    OF   PKOPEETY.  45 

ground  for  attachment.^  Even  such  removal  in  good  faith 
affords  ground  for  attaching,  if  not  enough  is  left  to  satisfy 
creditors ;  and  there  must  be  enough  left  of  liable  property.^ 
Of  course,  the  debtor  may  ship  his  exempt  property  at  pleas- 
ure,^ while  any  amount  of  it  retained  at  home  would  not  save 
him  from  attachment  of  the  rest  for  having  removed  liable 
property  from  the  state. 

The  removal  of  property  from  the  state  to  raise  money  to 
pay  debts  has  been  held  to  subject  the  debtor  to  liability  to 
have  his  property  attached.^ 

If  a  partner  sends  property  of  his  own  out  of  the  state  to 
defraud  his  personal  creditors,  that  is  no  circumstance  to  sup- 
port the  attachment  of  his  firm's  property  for  the  firm's 
debts.^  Shipping  goods  out  of  the  state  to  pay  the  consignee 
a  debt  due  is  not  a  disposition  of  them  to  hinder  or  defraud 
other  creditors.® 

§  62.  Keraoval  of  property  from  the  state  is  held  to  be  no 
ground  for  attaching,  if  the  debtor  has  retained  enough  to 
pay  his  debts.^  And  if  the  removal  is  for  the  purpose  of  pay- 
ing a  debt,  it  has  been  held  that  even  an  insolvent  debtor  does 
not  thereby  give  his  creditors  anv  ground  of  attachment.^ 
Removal  of  property  from  the  county  in  which  the  attach- 
ment suit  is  instituted  was  held  good  ground  for  attaching; 
the  rule  does  not  limit  the  act  to  the  county  in  which  an  ab- 
sconding debtor  has  last  resided.^ 

§  63.  The  plaintiff's  rights  are  in  jeopardy  when  his  debtor 
is  removing  property  out  of  the  state  without  leaving  enough 
to  pay  all  the  creditors,^''  though  enough  may  be  left  to  pay 

1  Simon  v.  Association,  54  Ark.  58;  ^  Evans  v.  Virgin,  69  Wis.  138. 
Durr    V.   Hervey,  44    id.  301 ;    Ran-  ^  Rice  v.  Pertius,  40  Ark.  157. 
dolph  V.  McCain,  34  id.  696 ;   Steph-  "  Pickard  u  Samuels,  64  Miss.  822 ; 
enson  v.  Sloan,  65  Miss.  407 :  Knowles  flyers  v.   Farrell,   47   id.  282 ;   Mon- 
V.  Stees,  79  Ala.  427 ;  Victor  v.  Hen-  tague  v.  Gaddis,  37  id.  453 ;  Haber  v, 
lein,  34  Hun,  562 ;  Bumberger  v.  Ger-  Nassitts,  12  Fla.  589. 

son,  24  Fed.  257  ;  McKinney  v.  Rosen-  8  Lowenstein  v.  Bew,  68  Miss.  265. 

band,  23  id.  785 ;  Clark  v.  Ingraham,  9  Ketchum  v.   Vidvard,  4   Thomp. 

15  Phila.  646.  &  C.  (N.  Y.)  138,  under  N.  T.  Laws 

2  Stephenson  v.  Sloan,  siqjra;  Mack  1831,  §§  34-39,  ch.  300. 

V.  McDaniel,  2  McCrary,  198.  w  Mere  removal  is  no  ground  for 

3  Carver  v.  Chapell,  70  Mich.  49.  attachment.    Steele  v.  Dodd,  14  Neb. 

4  Crow  V.  Lemon,  69  Miss.  799,  dis-    496. 
tinguishing  Lowenstein  v.  Bew,  68 
Miss.  265. 


46  STATUTORY   GROUNDS.  [§  64. 

him.  He  is  in  clanger  of  losing  the  greater  part  of  his  claim 
if  it  constitutes  a  minority  of  the  debtor's  general  liabilities. 
He  cannot  rely  upon  ordinary  process  as  adequate  in  such  case. 
He  is  entitled  to  the  conservative  writ,  especially  in  states 
where  the  first  attacher  is  accorded  preference.  The  reason 
which  supports  the  attachment  ought  to  prevail  everywhere.^ 
Certainly  the  remedy  should  be  accorded,  unless  in  exceptional 
cases  where  the  removal  is  evidently  but  temporary  and  with- 
out ill  design.^  It  may  be  that  the  permanent  removal  is>  not 
with  intent  to  defraud  the  plaintiff  himself;  yet,  if  there  is  not 
enough  left  in  the  state  to  pay  all  the  creditors,  it  may  reason- 
abl}^  be  inferred  that  the  removal  was  designed  to  defraud  some 
creditor,  and  that  alone  would  warrant  the  plaintiff  in  suing 
out  his  writ  of  attachment,'  where  the  affidavit  required  by 
the  statute  is  to  the  fact  that  the  debtor  has  removed  or  is 
about  to  remove  his  propert}^,  or  a  material  part  of  it,  out  of 
the  state,  not  leaving  enough  to  satisfy  the  plaintiff's  claim  or 
those  of  other  creditors.* 

§  64.  Under  such  statute  the  element  of  fraud  is  not  an  es- 
sential ingredient  of  the  debtor's  conduct  in  removing  prop- 
erty. Even  in  due  course  of  business  as  a  merchant  (it  has 
been  held),  he  cannot  ship  goods  out  of  the  state.*  Doubtless 
he  may  ship  when  enough  remains  to  pay  his  debts.^ 

1  Holliday  v.  Cohen,  34  Ark.  707 :  Disposal  of  property  to  delay  or  de- 
Removing  property  from  the  state  fraud  one  creditor  justifies  attach- 
without  leaving  enough  to  pay  debts    ment  by  another  creditor. 

is  ground  for  attachment,  though  *  Mack  v.  McDaniel,  2  McCrary,  C. 
enough  may  be  left  to  pay  the  attach-  Ct.  198 :  In  construing  the  Arkansas 
ing  creditor's  debt;  and,  to  sustain  statute,  making  a  ground  for  attach- 
this  ground,  he  may  prove  other  ment  that  the  debtor  "  is  about  to  re- 
debts.  Also.  Nutter  v.  Connet,  3  B.  move,  or  has  removed,  his  i^roperty, 
Mon.  (Ky.)  199.  or  a  material  part  of  it,  out  of  the 

2  Warder  v.  Thrilkeld,  53  Iowa,  134 :  state,  not  leaving  enough  to  satisfy 
Temporary  removal  of  property  from  the  plaintiff's  claim  "  or  those  of 
the  state,  held  not  to  be  a  ground  of  other  creditors,  the  court  held  that  a 
attachment  under  the  Iowa  code,  merchant,  under  such  circumstances, 
§  2951,  p.  8,  authorizing  attachment  could  not  ship  cotton  out  of  the  state 
when  the  debtor  is  about  to  remove  in  the  usual  course  of  his  business, 
his  property  out  of  the  state.  Also,  without  becoming  liable,  though 
Montgomery  v.  Tilley,  1  B.  Mon.  (Ky.)  there  was  no  fraud, —  the  cotton  be- 
155 ;  Friedlander  v.  Pollock,  5  Coldw,  ing  "  a  material  part  of  his  assets." 
(Tenn.)490.  ^Id. 

'  Sherill   v.  Beach,   87    Ark.   560 :        *  In  Alabama,  shipping  ootton  out 


§65.] 


FKAUDULENT    DISrOSITIOX    OF    PKOPEKXr. 


4:7 


So  long  as  a  merchant  or  any  other  person  has  property 
enough  in  the  state  to  meet  all  his  obligations,  he  may  have 
exported  all  his  stock  in  trade  without  rendering  either  that 
or  the  remainder  liable  to  attachment.  He  may  even  owe  as 
much  as  the  stock  is  worth,  yet  that  fact  will  not  indicate  an 
intent  to  remove  it,  and  thus  render  it  attachable,  if  he  has 
landed  estate  or  other  property  free  from  incumbrance  and 
sufficient  to  render  him  solvent.^  Even  if  he  is  not  solvent  a 
merchant  may  sell  goods  in  the  ordinary  course  of  his  business 
without  being  amenable  to  the  charge  of  fraudulently  dispos- 
ing of  them.-  Insolvency  is  no  ground  for  attachment.^  It 
has  been  held  that  a  merchant  may  buy  goods  on  credit  with- 
out disclosing  his  insolvency,  yet  not  intend  to  defraud  his 
creditor  so  as  to  warrant  him  in  suing  out  an  attachment.* 

§  65.  Fraudulent  assignment. —  An  assignment  b}'  a  debtor 
may  be  general  and  illegal  yet  not  be  fraudulent  so  as  to  be 
a  ground  for  attachment.^    But  the  assignment,  transfer  or 


of  the  state  in  the  usual  course  of 
business,  by  a  debtor  who  has  means 
enough  in  the  state  to  pay  his  debts, 
will  not  justify  attachment  on  the 
ground  of  removing  property,  etc. 
Stewart  v.  Cole,  46  Ala.  646 ;  Clarke 
V.  Seaton,  18  B.  Mon.  226 ;  Montague 
V.  Gaddis,  37  Miss.  453.  But  it  was 
held  in  Mack  &  Co.  v.  McDaniel,  2 
McCrary,  198,  that  sending  cotton  out 
of  the  state,  in  due  course  of  busi- 
ness, is  ground  for  attachment,  if  tlie 
defendant  (the  shipper)  has  not 
property  enough  left  in  the  state  to 
pay  his  debts. 

1  Wrompelmeier  v.  Moses,  59  Tenn. 
467 :  That  a  debtor  is  about  to  re- 
move his  stock  in  trade  out  of  the 
state  is  not  inferable  from  the  fact 
tliat  he  owes  as  much  as  it  is  worth, 
when  he  has  real  property  within  the 
state  of  more  than  twice  the  amount 
of  his  indebtedness,  rendering  him 
perfectly  solvent.  Also,  Montague 
r.  Gaddis,  37  Miss.  453 ;  White  v.  Wil- 
son, 10  111.  21 ;  White  v.  Williams,  id. 
~'o ;  Ridgeway  v.  Smith,  17  id.  33. 


2  Hernsheim  v.  Levy,  32  La.  Ann. 
340:  Selling  goods  in  the  usual 
course  of  business  is  not  a  fraudulent 
disposing  of  property  such  as  will 
justify  attachment  under  La.  Rev. 
Code,  art.  240,  §§  4,  5,  although  the 
seller  may  be  financially  embarrassed. 
Same  principle,  Smith  v.  Easton,  54 
Md,  138 ;  German  Bank  v.  Dash,  60 
How.  (N.  Y.)  Pr.  124. 

3  Walker  v.  Haggerty,  20  Neb,  482 ; 
Stringfield  v.  Fields,  13  Daly,  171; 
Kauffman  v.  Armstrong,  74  Tex.  65. 
See  Ring  v.  Vogel  Paint  Co.,  44  Mo. 
App.  111. 

■•Ellison  V.  Bernstein,  60  How.  Pr. 
145 ;  N.  Y.  Code,  §  636  (2). 

5Miiliken  v.  Dart,  26  Hun  (N.  Y.), 
24 :  The  invalidity  of  a  general  as- 
signment because  of  provisions  au- 
thorizing the  assignee  to  compromise, 
and  sell  on  credit,  does  not  authorize 
attachment  under  New  York  Code, 
section  636,  for  disposing  of  property 
with  intent  to  defraud. 


48  STATUTOKT    GROUNDS.  [§  65. 

pledging  of  property  under  such  circumstances  as  to  make  the 
fact  evident  that  the  transaction  is  designed  to  defraud  the 
plaintiff,  and  prevent  his  collection  of  his  demand  in  the  ordi- 
nary way,  will  warrant  the  charge  of  fraudulent  disposing  of 
property  to  defeat  the  result  of  ordinary  process,  and  will 
constitute  a  good  ground  for  attachment.^  In  making  such 
charge,  the  statute  must  be  implicitly  followed  (as,  indeed, 
in  all  cases),  though  all  the  facts  tending  to  sustain  the 
allegation  need  not  be  detailed.  Some  of  the  courts  are  par- 
ticular in  adhering  to  the  letter  of  the  authorization ;  cer- 
tainty should  be  required. 

Some-states  forbid  preference  in  assignments  for  the  ben- 
efit of  creditors,  while  in  others  it  is  allowed,-  though  the 
preference  in  the  latter  may  be  vitiated  by  fraud,  or  denied 
under  peculiar  circumstances.^  An  assignment  is  void  when 
it  does  not  fix  definitely  the  rights  of  creditors  but  leaves  the 
assignor  to  dispose  of  the  proceeds  at  his  discretion.*  And 
w4ien  it  shows  on  its  face  that  he  has  already  disposed  of  the 
property  the  instrument  is  evidence  of  fraud.*  But  fraudu- 
lent preference  is  not  to  be  inferred  from  the  fact  of  the  as- 
signor's insolvency.'*    Preference  given  to  a  vendor  of  goods, 

1  Weiller  v.  Schreiber,  63  How.  (N.  3  Galle  v.  Tode.  60  Hun,  132 ;  1  Rev. 
Y.)  Pr.  491:  A  purchaser  on  credit  Stat.  N.  Y.,  p.  603,  §  4;  Nat.  Bank 
who  was  to  sell  again  and  pay  out  of  v.  Stelling,  32  S.  C,  102  (in  which 
the  proceeds  of  sale,  pledged  the  prop-  preference  was  made  by  a  non-resi- 
erty  to  third  persons,  sought  to  con-  dent) ;  Kilpatrick,  etc.  Co.  v.  Mc- 
ceal  the  property,  withheld  the  names  Pheely  (Neb.),  56  N.  W  389 ;  Farwell 
of  the  pledgees,  etc.,  for  which  he  was  v.  Wright  (Neb.),  56  N.  W  984 ;  Jones 
held  to  have  become  liable  to  an  at-  v.  Loree,  37  Neb.  816 ;  Dry-goods  C!o. 
tachment  suit  vinder  section  636  of  v.  McPheely,  id.  800. 
NewYorkCode,  as  having  "assigned,  *  Averill  v.  Loucks,  6  Barb.  470 
disposed  of  or  secreted  property."  Mackie  v.  Cairns,  5  Cow.  547,  580 

2  Nelson  Distilling  Co.  v.  Creath,  45  Grover  v.  Wakemau,  11  Wend.  187 
Mo.  App.  169 :  Foster  v.  Mill  Co.,  92  Seaving  v.  Brinkerhoff,  5  Jolms.  Ch 
Mo.  79 ;  Estes  v.  Fry,  22  Mo.  App.  80 ;  329,  380 ;  Riggs  v.  Murray,  id.  565 ; 
Britton  v.  Boyer.  27  Neb.  522 ;  Gore  Blank  v.  Talcott,  19  N.  Y.  148 ;  Pier- 
V.  Ray,  73  Mich.  385 ;  Abernathy  v.  son  v.  Manning,  2  Mich.  444,  450 ; 
Armstrong,  46  Kan.  270 ;  De  Wolf  v.  Lutkins  v.  Aird,  6  Wall.  78 ;  Wiswall 
Armstrong,    46    id.    523 ;    Hosea    v.  v.  Ticknor,  6  Ala.  179. 

McClure,  43  id.   403 ;  Harris   v.  Ca-  5  Meyer  v.  Black,  4  N.  M.  190. 

pell,  28  id.  117;  McPike  v.  Atwell,  34  6 stamper  v.  Hibbs  (Ky.).  22  S.  W. 

id.  142,  148 ;  Tootle  v.  Cold  well,  30  id.  607. 
125.    See  Cooper  v.  Clark,  44  id.  358. 


§§  6G,  07.]       FKAUDULENT    DISPOSITION    OF   PROPEKTY.  49 

to  the  amount  of  the  price,  promised  in  case  of  future  assign- 
ment or  insolvency,  was  held  not  to  be  a  fraud  on  creditors.^ 
An  assignment,  by  an  insolvent  corporation,  of  all  its  prop- 
erty to  one  creditor  to  pay  its  debt  to  hira,  was  held  not 
fraudulent,  affording  no  ground  for  attachment  by  other 
creditors.-  But  where  an  assignee  is  allowed  to  make  pref- 
erences among  his  creditors  it  is  held  that  an  assigning  firm 
could  not  make  one  of  its  own  members  a  preferred  creditor.^ 

§  Q6.  A  debtor,  by  assigning  for  the  benefit  of  his  creditors, 
may  thus  delay  some  of  them  in  the  collection  of  their  claims; 
but  this  is  not  such  delay  as  is  meant  by  the  statute  which 
gives  the  right  of  attachment  when  the  debtor  is  about  to 
convey,  assign,  conceal  or  dispose  of  his  property  to  delay  and 
defraud  his  creditors.* 

The  defendant's  contradictory  statements  as  to  his  solvency, 
threats  of  assignment,  etc.,  have  been  held  evidence  of  fraud, 
and  attachment  maintained.^  But  a  threat  to  assign  was  not 
held  a  circumstance  agtiinst  the  debtor  when  it  Avas  followed 
by  a  lawful  assignment.^ 

Retaining  property  for  a  month  or  more  after  it  has-been 
assigned  indicates  fraud  and  may  justify  attachment.^ 

§  67.  Fraudulent  mortgage. —  If,  by  the  terms  of  the  mort- 
gage, the  mortgagor  is  allowed  to  retain  possession  and  to 
sell  in  due  course  of  trade  without  accounting  to  the  mort- 
gagee for  the  proceeds,  his  creditors  may  attach  the  mortgaged 
goods  in  his  hands  as  his  property  in  a  suit  against  him,  on  the 
ground  of  reason  to  believe  that  he  will  fraudulently  dispose 
of  the  property  before  the}^  can  obtain  judgment  against  him.^ 
Such  mortgage  is  fraudulent  as  to  creditors,  whether  it  be 
oral  or  written.^     A  debtor,  by  giving  such  mortgage  to  his 

1  National  Park  Bank  v.  Whitmore,  *  Torlina  v.  Trorlicht  (N.  M.),  27  P. 

104  N.  Y.  297 :  Miami  Powder  Co.  v.  794. 

Hotchkiss,   29    Fed.   767 ;    Smith    v.  ^  Nat.  Park  Bank  v.  Wiiitmore,  104 

Craft,  12  id.  856.  N.  Y.  297 ;  Anderson  v.  O'Reilly,  54 

2Holbrook  v.   Peters    (Wash.),   36  Barb.  620. 

P.  256.  ^  Evans  v.  Warner,  21  Hun,  574. 

3  Keith  u  Armstrong,  65  AVis.  225;  "^Roy  v.  Union   Co.  (Wyo.),  26  P. 

Vernon  v.  Upson,  60  id.  418 ;  Willis  996. 

V.  Bremncr.  id.  622 ;  David  v.  Birch-  « Eckman   v.   Munuerlyn,   32    Fla. 

ard,  53  id.  492 ;  McLiuden  v.  Went-  367. 

worth,  51  id.  170.  ^Id.;  Barnet  v.  Fergus,  51  111.  352; 
4 


50  STATUTOET   GROUNDS.  [§  68. 

attorney  for  past  and  future  services,  was  held  to  have  made 
the  property  attachable.^  A  mortgage  by  an  insolvent  to  a 
creditor,  in  excess  of  the  debt  due  him,  is  a  fraud  on  other 
creditors,  and  is  such  a  disposition  of  property  as  will  warrant 
attachment  by  them.^  So,  when  a  debtor  is  in  failing  circum- 
stances he  cannot  mortgage  his  property,  partly  to  secure  a 
debt  and  partly  to  have  advances  paid  to  himself,  without 
liability  to  the  inference- that  the  disposition  is  fraudulent.^ 
But  the  circumstances  proven  may  be  such  as  to  repel  the 
idea  of  fraud  or  fail  to  support  it.*  AVhen  the  mortgagor  in 
possession  sold  the  property  and  used  the  proceeds,  he  was 
held  to  have  created  no  ground  for  attachment  under  the 
circumstances  of  the  case.^  So,  when  the  maker  of  a  note 
mortgaged  property  to  secure  his  indorser,  it  was  held  that 
there  was  no  fraudulent  disposition.^ 

S  68.  If  the  morto^ao^e  is  without  consideration,  fraudulent 
disposition  is  inferable  when  the  complaining  creditor's  rights 
are  thus  defeated  or  jeopardized.'^  The  charge  may  be  that 
such  disposition  was  to  defraud  the  plaintiff  or  to  defraud 
creditors  generally;  it  maybe  that  the  debtor  has  disposed 
of  his  property  in  part  and  is  about  to  dispose  of  the  rest  to 
defraud  the  plaintiff  or  to  defraud  creditors.^  It  is  held  that 
the  giving  of  an  illegal  mortgage  prior  to  a  valid  assignment 
is  no  reason  :for  attaching  after  such  assignment.^  When  a 
mortgage  is  honestly  given  to  one  creditor,  others  have  no 

Horton  u  Williams,  21   Miun.   187;  2Riceu  Morner,64  Wis.599;  Smith 

Stein  V.  Munch,  24  id.  390 ;  Orton  v.  v.  Boyer,  29  Neb.  76. 

Orton,  7  Or,  478 ;  Bank  v.  Goodrich,  ^Qaiiagher  v.   Goldfrank,  75  Tex. 

5  Colo.    139 ;  Putnam  v.  Osgood,  52  562. 

N.  H,  148 ;  Anderson  r.  Patterson,  64  « Allen    v.    Fuget,    43    Kan.    672; 

Wis.  557 ;  Steinhart  v.  Deuster,  23  id.  Hershfield  v.  Lowenthal,  35  id.  407. 

136 ;  Cheatham  v.  Hawkins,  80  N.  C.  5  Hopkins  v.  Hastings,  21  Mo.  App. 

161 ;  Harman   v.   Hoskins,   56  Miss.  263. 

142;  Googins  v.  Gilraore,  47  Me.  9.  ^Godbe  Pitts  Drug  Co.   v.  Allen 

■Compare    Ephraim    v.  Kelleher,    4  (Utah),   29    P.    881.    See   Harris    v. 

Wash.    243 ;    Williston    v.   Jones,   6  Meyer,  84  Wia.  145. 

Duer,  504 ;  Smith  v.  Acker,  23  Wend.  •  Taylor  v.  Kuhuke,  26  Kan.  132. 

653 ;  Kavanagh  v.  Beckwith,  44  Barb.  8  Auerbach  v.  Hitchcock,  28  Minn. 

192.  73. 

iShellabargeruMoltin,47Kan.451.  9Watkins  N.   Bank  v.   Sands,  47 

(Five  like  cases  against  the  same  de-  Kan.  591 ;  Douglas  Co.  N.  Bank  v. 

fendant,  same  citation.)  Sands,  id.  596. 


§  G9.]  FKADDULENT   DISPOSITION    OF   PEOPERTY.  51 

ground  for  attaching  because  of  it ;  ^  but  if  the  mortgage  ex- 
ceed the  debt  it  will  not  be  deemed  honest.^ 

§  69.  Conveyance  ofiyropcrUj. —  The  conveyance  of  his  prop- 
erty by  the  debtor  to  avoid  the  payment  of  his  debts  is  a 
common  ground.''  It  need  not  be  "  to  hinder,  delay  and  de- 
fraud ; "  any  one  of  these  purposes,  on  the  part  of  the  debtor, 
accompanying  the  act  gives  ground  for  attaching.*  "  Cheat 
and  delay  "  were  held  equivalent  to  the  above-quoted  phrase,^ 
and  either  would  have  been  sufficient.  If  all  three  of  the 
purposes  be  charged,  or  if  they  be  stated  alternately  so  that 
any  one  of  them  may  be  proved,  the  pleading. will  hold  good, 
it  is  held.^ 

A  simulated  sale  to  defraud  creditors  is  g-ood  ground  for 
attachment.^  Sale  below  the  real  value  is  an  indication  of 
fraud.^  Fraud  on  the  part  of  the  seller  is  not  necessarily  in- 
dicative of  bad  faith  in  the  purchaser.^  Proof  that  the  debtor 
contemplated  the  sale  of  his  property  may  be  allowed  to  sup- 
port the  charge  that  he  is  about  to  dispose  of  his  propert}'"  to 
defraud  his  creditors.^"  It  is  while  the  complainants  are  cred- 
itors that  fraudulent  sales  affect  them ;  so  transfers  or  con- 
templated transfers  before  do  not  concern  them.^^ 

Commission  merchants  sold  goods,  for  which  warehouse  re- 
ceipts had  been  given  to  secure  borrowed  money,  without  the 
consent  of  their  creditors ;  this  was  held  to  be  a  fraudulent 
disposition  affording  ground  for  attachment. ^- 

Realty  cannot  be  removed  to  defeat  creditors,  but  its  con- 
veyance for  that  purpose  is  good  ground  for  attachment.^* 

1  Merchants'  Bank  v.  McKellar  Robinson  Notion  Co.  v.  Ormsby,  33 
(La.  Ann.),  11  So.  572.  Neb.  665. 

2  Rice  1-.  Morner,  64  Wis.  599.    Com-        9  Ott  v.  Smith,  68  Miss.  773. 

pare  Butts  v.  Peacock,  23  id.  359.  i"  stein wenderr.  Creath,  44 Mo.  App. 

3  Gray  v.  Neill.  86  Ga,  188 ;  Brown    356. 

V.  Massman,  71  id.  859.    S'ee  Loeb  v.       i^Day  v.  Kendall,  60  la.  414. 
Smith,  78  id.  504  12  Bank  of  Commerce  v.  Payne,  86 

4  Crow   V.  Beardsley,  68  Mo.  435 ;     Ky.  446. 

Pilling  V.  Otis,  13  Wis.  495.  13  Kline  v.  O'Donnell,  11  Pa.  Co.  Ct. 

sBurgert  v.  Borchert,  59  Mo.  80.  38,  in  construction  of  the  Pennsyl- 

6  Stewart  v.  Cabanne,  16  Mo.  App.  vaniaDebtors' Actof  1869;  Continen 

517.  tal  N.  Bank  v.  Draper,  89  Pa.  St  446 

"Haralson  v.  Newton,  63  Ga.  163;  Keene  v.  Sallenbach,   15  Neb.   200 

Washburn  v.  McGuire,  19  Neb.  98.  Thompson  v.  Baker,  141  U.  S.  648 

^  Claflin  V.  Rodenberg,  95  Ala.  249 ;  Connor  r.  Follansbee,  59  N.  H.  124 


62  STATUTORY    GKOUNDSl  [§  YO. 

§  TO.  A  firm,  when  largely  indebted,'  sold  goods  to  a  brother 
of  the  partners,  who  was  a  merchant  doing  business  in  an- 
other state.  This  was  held  to  create  no  presumption  of 
fraud. ^  An  offer  of  settlement  made  to  a  plaintiff  may  tend 
to  prove  fraud  as  to  other  creditors  but  not  as  to  him.^  Sale, 
or  removal  of  property  be\^ond  the  jurisdiction,  gives  no 
ground  for  attachment  if  it  is  done  in  good  faith.^  Transfer- 
ring all  his  property  to  raise  money  to  pay  his  debts,  the 
debtor  gives  no  ground  for  attachment  as  though  he  had  done 
so  to  defeat  creditors.*  And  sale  and  conveyance  for  his  own 
use  affords  no  ground  if  the  seller  is  solvent,^  Selling  cheaply 
to  attract  customers  by  a  merchant  was  held  not  to  warrant 
attachment.^  A  sale  to  procure  necessaries  for  the  debtor's 
family  was  held  no  ground."  Fraudulent  intent  is  not  pre- 
sumed from  the  mere  fact  that  creditors  have  been  hindered.^ 
It  is  a  question  of  fact  to  be  proved.^  Appearances  indicating 
fraud,  without  any  substantiation  of  fraudulent  intent,  are 
insufficient  as  ground  for  attaching.^"  "  About  to  convey  fraud- 
ulently" is  not  supported,  as  a  ground,  by  merely  showing 
discrepancy  in  the  debtor's  statement  of  his  accounts,  when 
the  statement  is  mainl}^  true.^^ 

Whether  the  transfer  of  propert}?"  is  in  fraud  of  creditors  is 
alwa^T^s  a  question  dependent  upon  the  animus  of  the  debtor 
and  the  circumstances  of  the  transaction.^-  Ordinarily  it  is 
not  necessary  that  the  transferee 'should  be  a  participant  in 
the  fraud  in  order  to  enable  the  attaching  creditor  to  make 
the  requisite  affidavit,^^  though  there  are  exceptions."     The 

Seckendorf    v.   Ketchum,   67    How.  i*)  Ferguson  v.  Chastant,  35  La.  Aun. 

Pr.  5-26.  339 ;    Lehman  v.   McFarlaud,  35  id. 

1  Marx  V.  Strauss,  93  Ala.  453.  624 ;  Rice  u  Pertuis,  40  Ark.  157. 

2  Cliaffe  V.  Mackenzie,  43  La.  Ann.  n  Mack  v.  Jones,  31  Fed.  189. 
1063.  12  Curtis  v.  Hoadley,  29  Kan.  566 ; 

3Hunteru  Soward,  15  Neb.  215.  Clark    v.    Smith,    7    B.    Men.    273; 

*  Ladew  v.  Hudson  Shoe  Co.,   61  Spencer  v.  Deagle,  34  Mo.  81 ;  Eosen- 

Hun,  333;  Saddlery  v.  Urner,  24  Mo.  field  v.  Howard,   15  Barb.  546;  Mc- 

App.  534.  Kinney  v.  Farmers'   Bank,    104  111. 

5  Willis  V.  Lowry,  66  Tex.  540.  180. 

6  Mack  V.  Jones,  31  Fed.  189.  13  Enders  v.  Ricliards,  33  Mo.  598; 

7  Estes  V.  Fry,  22  Mo.  App.  80.  National   Park  Bank  v.  Whitmore, 

8  Dempsey  v.  Bowen,  25  111.  App.  104  N.  Y.  297. 

193.  14  Johnston  v.  Field,   63  Ind.    377: 

9  Shove  V.  Farwell,  9  111.  App.  256.     Fraudulent  conveyance,   to   be  sus- 


§  71.]  FKAUDULENT   DISPOSITION    OF    PKOPERTT.  53 

admissions  and  declarations  of  the  debtor  are  to  be  consid- 
ered when  fraud  is  a  matter  of  inference  from  a  given  state 
of  facts,  whether  concerning  a  conveyance  of  property  within 
the  state  by  deed  of  sale,  or  the  removal  of  it  beyond  the 
bounds  of  the  state,  or  any  other  disposition  of  the  debtor's 
property ;  and  the  sale  of  it,  and  subsequent  concealment  of 
the  money  received,  under  the  broad  statute  ground,  "  fraud- 
ulent disposition  of  property  and  effects,"  may  be  sufficient 
to  support  attachment.^ 

§  71.  Fraudulent  disposition  in  general. —  It  is  not  a  usual 
requirement  that  the  fraudulent  disposition  of  property  must 
be  within  the  state  in  order  to  afford  ground  for  attachment.^ 
Fraudulent  disposition  to  cheat,  hinder,  delay  or  defraud 
creditors  is  a  ground  for  attachment,^  whatever  the  method 
of  disposing  of  the  property  in  violation  of  statute.  If  it  is 
to  defeat  one  creditor  another  may  attach.*  If  it  is  of  firm 
propert}^  by  one  member  of  an  insolvent  firm  to  pay  his 
personal  debts,  the  firm's  property  may  be  attached.^  The 
creditor's  belief  that  his  debtor  is  about  to  dispose  of  his  prop- 
erty to  defraud  creditors  is  good  ground  for  attaching,  though 
it  may  afterwards  occur  that  the  debtor  absconds  instead  of 
doing  as  had  been  supposed.  A  junior,  attaching  on  the  latter 
ground,  was  not  ranked  above  the  first  attacher  on  ground  of 
belief.**  If  good  ground  for  attaching  exists,  the  fact  that  the 
debtor  intends  to  make  a  general  assignment  does  not  pre- 
clude the  creditor  from  proceeding.'^ 

A  debtor  may  be  about  to  assign  all  his  property  for  the 
benefit  of  his  creditors  without  giving  occasion  for  the  cred- 
itor to  attach,^  unless  there  are  circumstances  indicating  fraud ; 

tained  as  a  ground  of  attachment  3  Gray  v.   Blackwell,    86    Ga.    188. 

under    2d    Ind.    Rev.    Stat,   p.   232,  Attachment  may  lie  against  a  foreign 

§  526,  must  be  such  that  both  the  corporation  for  fraudulent   conver- 

purchaser  and  the  debtor  who  sold  siou  of  its  own  stock.    22  N.  Y.  S.  695. 

were  guilty  of  fraud.     In   Leitens-  ''  Sherrill  v.  Bench,  37  Ark.  560. 

dorfer  v.  Webb,  1  New  Mex.  34,  it  ^  Keith  v.  Armstrong,  65  Wis.  225. 

was  held  that  an  assignment  fraud-  ^  Boyd  v.  Labranche,  35  La.  Ann. 

ulent  in  law,  though  not  in  fact,  was  285. 

ground  for  attachment.  ''  Solinsky  v.  Bank,  1  Pickle  (Tenn.), 

iBulleue  v.   Smith.   73    Mo.    151;  368. 

Powell  r.  Mattlievvs.  10  Mo.  49.  s  Sweet    v.    Reed,    12    R.    I.    119; 

2Kibbet'.  Wetmore,   31   Hun,  424;  Campbell  v.  Warner,   22  Kan.  604; 

88  N.  Y.  Supreme  Ct.  424  Wilson  v.   Britton,   6  Abb.    Pr.  97 ; 


54 


STATUTORY   GROUNDS. 


[i'Ti. 


and,  in  the  latter  case,  a  threat  to  assign  may  support  the 
allegation  of  being  about  to  make  fraudulent  disposition  of 
property.^  Confession  of  judgment  in  favor  of  a  third  per- 
son for  the  purpose  of  keeping  property  out  of  the  reach  of 
a  creditor,  or  fraudulent  assignment  for  that  purpose,  is  suffi- 
cient indication  to  conceal,  such  as  to  warrant  attachment.^ 
The  debtor's  threats  to  defeat  his  creditor  by  putting  property 
out  of  the  reach  of  ordinary  process;^  his  declarations  of  in- 
tent, and  more  especially  his  conduct,  may  be  given  in  evi- 
dence to  prove  his  animus.  Even  the  statements  of  one  part- 
ner showing  -fraudulent  acts  of  another  member  of  the  firm 
may  give  rise  to  such  inference  against  himself  as  to  afford 
ground  for  attachment.'* 

There  are  many  cases  in  which  attachment  is  a  proper  rem- 
edy because  it  will  not  do  to  trust  to  ordinary  process,  the 
circumstances  being  such  as  to  bring  the  debtor  within  the 
statute  of  the  state  where  the  suit  is  brought  against  a  non- 
resident, absent,  absconding,  or  property-concealing  debtor, 
yet  such  as  seem  to  require  no  special  treatment.^ 


Dickinson  v.  Benliam,  10  id.  390; 
Eldridge  v.  Philliiison,  58  Miss.  270 ; 
Fitzpatrick  v.  Flannegan,  106  U.  S. 
650;  Harris  v.  Capel],  28  Kan.  117. 

1  Wiiite  V.  Leszynsky,  14  Cal.  165 ; 
Newman  v.  Kraim,  34  La.  Ann.  910; 
Gasherie  v.  Apple,  14  Abb.  Pr,  64.  In 
Kansas,  preference  given  to  certain 
creditors  is  no  ground  for  chai-ging 
fraudulent  disposition  of  property. 
Campbell  v.  Warner,  23  Kan.  604. 
Nor  is  it  in  any  state  where  making 
preferences  is  legal. 

2  Leitensdorf  er  v.  Webb,  1  New  Mex. 
34 ;  Field  v.  Livermore,  12  Mo.  218. 

3  Orr  V.  Lindsey  Shoe  Co.,  82  Tex. 
273.  ComjKire  Farwell  v.  Furniss, 
67  How.  Pr.  188. 

■*  Bryant  v.  Simoneau,  51  111.  824 : 
Undei"  the  charge  that  the  debtors 
■were  removing  their  property  from 
the  state  to  defraud  creditors,  the  at- 
tachment was  sustained  upon  proof 
that  one  of  the  debtors  had  admitted 
that  his  partner  had  absconded  and 


taken  most  of  the  firm's  assets  with 
him  out  of  the  state,  leaving  him  to 
pay  the  debts.  The  remaining  debtor 
was  deemed  to  have  been  cognizant 
of  the  acts  of  the  absentee,  and  to 
have  par-ticipated  in  the  fraud.  New- 
man V.  Kraim,  34  La.  Ann.  910: 
Threats  to  dispose  of  property,  good 
ground.  Fraudulent  transfer  by  one 
of  two  insolvent  parties  justifies  at- 
tachment upon  a  joint  demand 
against  both.  Hirsch  v.  Hutchinson, 
64  How.  Pr.  366.  If  two  partners  are 
charged  with  fraudulent  disposition, 
proof  against  one  is  sufficient  to  hold 
the  firm,  Wilson  v.  Cole,  26  Mo. 
App.  5. 

5  Sloan  V.  Bangs,  10  Rich.  (S.  C.)  15 ; 
Dunn  V.  Myers,  3  Yerg.  (Tenn.)  414 ; 
Strattou  V.  Brigham,  2  Sneed  (Tenn.), 
420 ;  McCaulley  v.  Shune,  5  Harring- 
ton (Del.),  28;  Sparks  v.  Zebley,  id. 
353;  Haber  v.  Nasitts,  12  Fla.  589; 
Bowers  v.  Beck,  2  Nev.  139 ;  Taylor 
V.    Knox,    1    Dall.  158;    Shipmau  v- 


§§  72,  73.  EXCEPTIONAL   GROUNDS.  55 

§  72.  An  intent  to  defraud  cannot  be  inferred  from  prefer- 
ence given  to  certain  creditors  over  others  in  a  general  as- 
signment where  such  preference  is  not  inhibited.^  The  partner 
of  a  firm,  under  such  absence  of  statutory  restriction,  may 
prefer  his  own  creditors  to  those  of  the  partnership.  An  as- 
signment would  be  void  on  the  ground  of  fraud  which  should 
divert  partnership  property  from  the  payment  of  partnership 
debts;  prevent  the  creditors  of  a  firm  from  making  their 
money  out  of  the  assets  of  the  firm.-  But  it  has  been  held 
that  partners,  upon  the  voluntary  dissolution  of  their  firm, 
may  transfer,  for  a  valuable  consideration,  all  thejr  joint  assets 
to  a  single  member  free  from  the  claims  of  the  partnership 
joint  creditors.*  When  one  of  two  partners  dies,  the  survivor, 
if  no  proceeding  to  liquidate  the  partnership  affairs  be  pend- 
ing, may  treat  the  firm  assets  as  his  own.^  Should  he  then 
apply  them  to  the  payment  of  his  individual  debts,  it  is  held 
that  his  act  will  be  valid  if  done  in  good  faith.'^  But  if  a 
partner  in  ah  insolvent  firm  applies  its  money  to  his  own 
debts,  it  is  a  fraudulent  disposition  and  a  ground  for  attach- 
ment.^ 

YI.  Exceptional  Grounds. 

§  73.  Frmidulently  contracting  or  incurring  the  debt. — 
AVhen  ordinary  process  may  be  employed  effectually,  the  au- 
thorization of  the  extraordinary  is  anomalous.    There  are  sev- 

Woodbury,  2  Miles  (Pa.),  67 ;  King  v.  Md.  380 ;  Jenners  v.  Doe,  9  Ind.  464 ; 

Cooper,  id.  176 ;  Kennedy  v.  Baillie,  Johnson   v.   Thweatt,    18    Ala.   744 ; 

3  Yeates  (Pa.),  55 ;  Naylor  v.  French,  Forbes  v.  Scaunell,  13  Cal.  243 ;  Nye 

4  id.  241 ;  Wilson  v.  Britton,  6  Abb.  v.  Van  Husan,  6  Mich.  329 ;  Jackson 
Pr.  33;  Weiller  v.  Schreiber,  11  Abb.  v.  Cornell,  1  Sandf.  Ch.  348;  Ni'chol- 
N.  Cas.  175.  son  v.  Leavitt,  4  Sandf.  S.  C.  307 ; 

•  Lord  V.  Devendorf,  54  Wis.  491 ;  Kirby  v.  Scoonmaker,  3  Barb.  Ch.  46. 
Spring  V.  Insurance  Co.,  8  Wheat.        3  story    on    Partnership,    §    358; 

268 ;    Brashear  v.  West,  7  Pet.  608 ;  Schmidlapp  v.  Currie,  55  Miss.  597. 
Eldridge  v.  Phillipson,  58  Miss.  270 ;        ^  Locke  v.  Lewis,  124  Mass.  1. 
Fitzpatrick  v.  Flannagan,   106  U.  S.        ^  Roach  v.  Brannon,  57  Miss.  490. 
648;  McGinty  v.  Flannagan,  id.  661.        6  Keith  v.  Armstrong,  65  Wis.  225; 

2  Wilson    V.   Robertson,   21   N.   Y.  Evans  v.   Virgin,  69    id.  167  (same 

587 ;  Lester  v.  Abbott,  88  How.  Pr.  parties,  72  id.  427) ;  Landauer  v.  Vie- 

488 ;  Dunham  v.  AVaterman,  17  N.  Y.  tor,  69  id.  442 ;  Powers  v.  Large,  id. 

9 ;  Johnson  v.  McAllister's  Assignee,  627 ;  Clark  v.  Lamoreaux,  70  id.  513. 
30  Mo.  327 ;  Rosenberg  v.  Moore,  11 


56  STATUTORY   GEOUNDS.  *  [§  74. 

eral  states,  however,  which  allow  attachments  not  merely  on 
the  grounds  we  have  considered,  but  also  on  some  specified 
ones  not  akin  to  the  concealment  of  person  or  property,  or  to 
the  debtor's  non-residency,  or  to  anything  rendering  prelimi- 
nary seizure  for  eventual  execution  necessarj'-  to  the  collection 
of  debts.  One  of  these  exceptional  grounds  is  the  fraudulent 
contracting  or  incurring  of  the  debt.  The  authorization  is 
that  if  the  creditor  make  oath  that  the  debt  he  sues  upon  was 
fraudulently  contracted  or  incurred  b}^  the  debtor  he  may  at- 
tach to  secure  it.  The  debtor  may  be  living  permanently  as 
a  citizen  of  the  state,  within  the  court's  jurisdiction,  evincing 
no  s3nTiptoms  of  a  disposition  to  run  away  or  to  hide  himself 
or  his  property.  The  creditor  need  not  swear  that  he  believes 
his  debtor  likely  to  do  any  of  these  things.  It  would  not  hurt 
his  affidavit  were  he  to  swear  to  the  contrary;  it  would  be 
mere  surplusage  to  the  statutory  requirement  that  he  swear 
to  the  fraudulent  contracting. 

If  the  idea  of  the  legislator  was  that  a  man  capable  of  mak- 
ing a  fraudulent  contract  is  likely  to  defeat  ordinary  process 
in  some  way,  why  would  not  the  reason  apply  to  all  dishonest 
persons?  Why  not  make  the  oath  of  the  creditor,  that  he 
believes  his  debtor  to  be  dishonest,  a  ground  for  attaching? 
It  will  be  perceived  that  the  legislative  authorization  of  the 
remedy,  when  the  debt  sued  upon  was  fraudulently  con- 
tracted, rests  on  a  different  principle  from  that  supporting 
the  authorizations  heretofore  considered. 

§  74.  It  has  been  held  that,  when  fraudulent  contracting  is 
the  ground,  the  attachment  will  fail  if  a  part  of  the  debt  was 
honestly  contracted;^  that  if  obtaining  money  under  false 
pretenses  is  the  ground,  it  will  not  hold  if  the  evidence  shows 
that  only  a  small  part  of  the  debt  was  thus  created.^  Thus, 
though  the  debtor  be  dishonest,  he  may  escape  the  harsher 
process ;  so  the  exceptional  authorization  is  not  based  on  his 
dishonesty  or  the  idea  that  he  is  not  trustwortliy  to  hold  his 
property  till  execution  can  be  issued  in  the  ordinary  way. 
The  fraud  must  have  been  practiced  when  the  debt  was  con- 
tracted, not  afterwards  when   the   contract  was   renewed,* 

lEstlow  V.  Hanna,  75   Mich.  319.        » First  N.  Bank  v.  Eosenfield,  66 
See  McGovern  v.  Payne.  33  Barb.  83.     Wis.  393 ;  Wachter  v.  Famachron,  63 
2  Stiff  V.  Fisher,  3  Tex.  App.  346.         id.  117. 


§  To.]  EXCEPTIONAL   GROUNDS.  57 

though  untrustworthiness  may  be  evinced  on  the  novation  of 
a  debt  as  well  as  at  its  creation. 

"What  act  or  practice  or  false  pretense  will  come  under  the 
statutory  phrase,  "fraudulently  incurring"  or  "fraudulently 
contracting"  the  debt  sued  upon?  False  professions  of  solv- 
ency ;  ^  false  statements  in  trade ;  ^  buying  goods  to  get  posses- 
sion and  selling  them  without  payment ;  ^  embezzling  money ;  * 
buying  without  any  intention  of  paying,-^  and  many  other  ex- 
amples of  " fraudulently  contracting "  or  "fraudulent!}^  incur- 
ring," within  the  statute  of  the  state  where  the  phrase  (or  a 
similar  one)  occurs,  appear  in  the  books." 

§  75.  Attachment  is  allowed  in  Georgia,  in  a  suit  for 
"  money  had  and  received,"  to  recover  a  sum  paid  for  stock 
in  a  foreign  corporation,  on  the  ground  that  it  was  fraudu- 
lently obtained  from  the  plaintiff.^ 

The  following  seems  a  clear  statement,  made  in  construc- 
tion of  the  Missouri  statute,  but  which  would  fit  as  well  all 
others  containing  the  same  provision  as  to  fraudulent  con- 
tracting: "The  debtor  must  have  been  guilty  of  some  mate- 
rial deceptive  act,  word  or  concealment,  done  or  suffered  by 
him  with  the  intent  to  induce  the  opposite  party  to  consent 
to  the  debt.  The  opposite  party  must  have  relied  upon  such 
false  acts  or  manifestations  of  the  debtor,  and  yielded  his 
consent  to  the  contract  on  the  faith  thereof.  In  this  manner 
alone  results  a  debt  fraudulently  contracted  on  the  part  of 
the  debtor."^     But  it  is  held  in  Mississippi  that  the  debtor's 

■    1  Wachter  v.  Famachron,  supra.  624 ;  Campion,  etc.  Co.  v.  Searing,  47 

2  Littlejohn  v.  Jacobs,  66  Wis.  600 ;  Hun,  237 ;  Walker  v.  Beaury,  7  Pa. 
Young  V.  Cooper,  12  Neb.  610.  Co.  Ct.  258 ;  Yates  v.  Dodge,  123  111. 

3  Strauss  v.  Abrahams,  32  Fed.  310.  50 ;  Stanhope  v.  Swafford,  77  Iowa, 
But  in  an  action  to  recover  damages  594 ;  Cole  v.  Aune,  40  Minn,  80 ; 
for  fraudulently  obtaining  goods,  at-  Kuehn  v.  Paroni,  20  Nev.  203;  Raw- 
tachment  was  denied  in  New  York,  lins  v.  Powers,  25  Neb.  681 ;  Estlow 
Whitner  v.  Von  Minden,  27  Hun,  269.  v.  Hanna,  75  Mich.  219 ;  Mudge  v. 
See  Rosenthal  v.  Wahre,  58  Wis.  621,  Steinhart,  78  Cal.  34 ;  Godden  v.  Pier- 

*  Cole  y.  Aune,  40  Minn,  80.     Com-  son,  42  Ala   370;    Curtis  v.   Hoxie 

pare  Finley  v.  Bryson,  84  Mo,  664.  (Wis,),  59  N.  W.  581. 

5  Blackwell  v.  Fry,  49  Mo.  App.  638.  ^  Grangers'  Ins.  Co.  v.  Turner,  61 

6  First  N.  Bank  v.  Swan,  3  Wyo.  Ga.  561. 

356;  Mackey  v.  Hyatt.  43  Mo.  App.  SFinlay  v.  Bryson,  84  Mo.  664.  See 
443;  Gries  t\  Blackmau,  30  Mo.  App.  further  as  to  Missouri  statute:  St. 
2 ;  Strasburger  v.  Bachrach,  59  Hun,    Louis  Type  Foundry  v.  Printing  Co., 


58  STATUTORY   GROUNDS.  [§  76. 

design  not  to  pay  when  contracting  need  not  be  shown  to 
support  the  charge  that  he  contracted  the  debt  fraudulently.^ 
Yet  it  had  been  held  in  the  same  state  that  his  animus  must 
be  considered  when  fraudulent  contracting  is  the  ground  of 
the  attachment.^  If  funds  were  lawfully  received,  their  sub- 
sequent misapplication  will  not  support  attachment,  in  a  suit 
against  the  recipient,  on  the  ground  that  the  debt  was  fraud- 
ulently contracted.^ 

If  the  debt  was  fraudulently  contracted,  the  contract  itself 
is  null  as  to  any  advantage  the  wrong-doing  party  might 
claim;  so  a  note  given  pursuant  thereto  has  no  time  at  which 
it  may  become  due.  There  may  be  attachment  without 
awaiting  the  nominal  date  of  its  maturity.* 

§70,  Other  anomalous  grounds. —  Authorization  of  attach- 
ment because  the  debtor  has  come  into  the  state  and  secretly 
brought  his  goods  with  him,  after  having  absconded  from  his 
own  state,  is  exceptional  to  the  prevalent  system ;  for  such  a 
state  of  things  may  exist  and  yet  ordinary  process  be  avail- 
able in  the  state  into  which  he  has  removed.  In  such  case,, 
however,  the  extraordinary  remedy  is  allowed  to  a  non-resi- 
dent creditor  against  the  new-comer  in  Tennessee.^  This  is 
held  not  to  disturb  the  exclusive  chancery  jurisdiction  over 
property  of  non-residents  when  the  creditor's  remedy  in  their 
state  is  shown  to  have  been  exhausted." 

There  are  several  other  anomalous  grounds  peculiar  to  a 
few  states,  such  as  failure  to  apply  income,  etc.,  received  after 
contra-cting  the  debt  to  its  payment,  failure  to  pay  for  work 
on  its  completion;  when  the  obligation  was  incurred  in  con- 
ducting a  steamboat  on  the  waters  of  the  state,  etc.  These 
and  others  are  stated  under  the  first  head  of  this  chapter. 

3  Mo.  App.  142;  City  Bank  v.  Phil-  •*  Muser  v.  Lissner,  67  How,  Pr.  509 

lips,  23  Mo.  85 ;  Holland  v.  Ander-  5  Act  of  1870,  ch.  122,  §  1,  amend- 

son,  38  id,  35 ;  Bryan  v.  Hitchcock,  atory  of  Tenn.    Code,   §  3455 ;  Mer- 

43  id.  527 ;  Wannell  v.  Kem,  57  id.  chant  v.   Preston,    1   Lea,   280.     See 

478 ;  Bailey  v.  Smock,  61  id,  213.  Beasley  v.  Parker,  3  Tenn,  Ch.  47. 

1  Marks  v.  Stoner  (Miss.),  11  So.  186,  6  Taylor  v.  Badoux,  92  Tenn.  249 ; 

2  Marqueze  u  Southeimer,  59  Miss.  21    S.    W,    522;   Mill  &  V.'s    Code, 
430 ;  Miss.  Code  of  1880,  §  2415.  §§  4993,  5040. 

^Goss  V.  Boulder  Co.  Comm'rs,  4 
Colo.  468. 


CHAPTER  III. 

THE  PETITION  AND  CAUSE  OF  ACTION. 

I.  Averments  and  Prayeb §§  77-83 

II.  Amendments 8t-87 

III.  Amendments  Affecting  the  Defendant 88-91 

IV.  When  the  Petition  Should  be  Filed 92,  93 

V.  Action  on  Breach  op  Contract 94-97 

VI.  Debt  Not  Due  but  Certain 98-100 

VII.  Exceptional  Causes  of  Action 101, 102 

VIIL  Attachments  Aided  by  Equity 103, 104 

I.    AVERMEXTS   AND   PkATEE. 

§  77,  Form. —  The  petition,  complaint  or  declaration  is  in  the 
usual  form  of  any  action  at  law  for  debt,  with  the  additional 
statement  of  the  grounds  of  attachment  and  prayer  for  the 
writ.  When  the  petition  is  filed  without  the  design  of  at- 
taching it  is  usual  to  file  a  supplemental  petition  to  make  the 
additional  statement  and  prayer  when  it  has  been  found  nec- 
essary to  attach.  It  has  been  held  that,  while  the  petition  is 
necessary  to  an  attachment,^  a  prayer  for  the  writ  is  not  nec- 
essary ;  2  but  it  is  usual  and  certainly  congruous  and  logical  to 
ask  for  the  issue  of  the  writ  as  the  means  of  effecting  the  purpose 
of  the  petition.  There  should  be  prayer  for  judgment  with 
privilege  upon  the  property  attached  or  some  recognition  of  the 
lien,  but  in  some  states  it  is  not  essential.''  In  other  respects 
there  is  nothing  peculiar.  As  in  all  personal  actions  the  peti- 
tion or  declaration  must  show  to  what  court  it  is  addressed, 
who  are  the  parties,  etc.,  whether  the  case  turns  out  to  be 
wholly  hi  rem  or  not. 

§  78.  Essentials. —  The  petition  must  set  forth  the  cause  of 
action,  the  amount  and  nature  of  the  demand,*  and  the  grounds 

1  Garrett  r.  Taylor,  88  Ga.  467.  ^Aultman  v.  Baggs,  50  Mo.  App. 

2DeCausseyu  Bailey,  57  Tex.  665.  280;  Bartlett  v.  Ware,   74  Me.  292; 

'  Baltimore      Bank      n     Teal,     4  Belfast  Savings  Bank  v.  K.  L.  &  L. 

Hughes,  C.   C.   572 ;  De   Caussey  v.  Co.,  73  Me.   404 ;  Hirsh  Brothers  v. 

Bailey,  57  Tex.  665.  Thurber,    54   Md.   210 ;    Simpson  v. 


60  PETITION    AND    CAUSE    OF   ACTION.  [§  79. 

for  attachmeut,  or  a  reference  to  the  affidavit  containing 
them.  Tliere  is  usually  a  reference  to  the  bond  filed  with  the 
petition,  when  the  statute  fixes  the  amount  (as  that  it  shall 
be  twice  the  sum  of  the  claim);  and  when  the  amount  of  the 
bond  is  to  be  fixed  by  the  court,  the  prayer  is  that  the  writ 
be  issued  upon  compliance  with  the  order  fixing  the  amount. 

Where  the  statute  prescribes  the  essentials  of  a  petition  for 
attachment,  as  that  the  claim  shall  be  set  forth  in  counts,  it 
is  held  that  there  can  be  no  lien  created  unless  the  form  is 
observed.^  Where  no  form  of  pleading  is  insisted  upon,  as  is 
often  the  case  in  justices'  courts,  it  has  been  considered  suffi- 
cient to  state  the  cause  of  action  in  the  affidavit,-  instead  of 
stating  it  in  both  the  petition  and  affidavit  as  usual. 

§  79.  Petition  and  affidavit  should  agree. —  There  should  be 
consistency  between  the  petition  and  affidavit  as  to  the  cause 
of  action  ^  and  the  grounds  of  attachment.  If  they  are  fatally 
variant,  the  attachment  may  be  quashed  on  motion.*  When 
the  variance  may  be  reconciled  by  construction,  there  ought 
not  to  be  dissolution  of  attachment  by  motion.  A  petition 
which  alleged  the  defendant  to  be  a  resident  of  the  state  and 
also  stated  that  he  was  a  non-resident  was  not  so  bad  as  to 
cause  the  dismissal  of  the  attachment.^  When  the  afiidavit 
alleged  that  the  debt  had  been  fraudulently  contracted,  and 
the  declaration  averred  breach  of  warranty,  the  difference 
was  reconcilable.^ 

Essential  averments  of  the  petition  cannot  be  supplied  by 

Burch,  4  Hun,  315 ;  Seaver  v.  Fitz-  There  need  be  no  election  between 

gerald,  23  Cal.  85 ;  Sueterlee  v.  Sir,  counts  when   they  are  not  contra- 

25  Wis.  357;  Mackubin  v.  Smith,  5  dictory  of   each  other.     Cadwell  v. 

Minn.  3G7 ;  Harrington  v.  Loomis,  10  Corey  (Mich.),  51   N.   W.    888.     This 

id.   366;  Gemmell  v.  Rice,  13  Minn,  was  relative  to  a  declaration  for  dani- 

400 ;  Byrne  v.  Roberts,  31  Iowa,  319 ;  ages. 

Espey  V.  Heidenheimer,  58  Tex.  662 ;  2  Holman  v.  Kerr,  44  Mo.  App.  481. 

Ogden  V.  Walters,  12  Kan.  282 ;  Diet-  3  Deering  v.  Collins,  38  Mo.  App.  80 ; 

rich  u  Lang,  11  Kan.   636;  King  v.  Caldwell  u  Hale^^  3  Tex.  317. 

Harrington,  14  Mich.  532 ;  Van  Wyck  4  Focke  v.  Hardeman,  67  Tex.  173 ; 

V.   Hardy,   4  Abb.    App.    Dec.   496 ;  Merchants'  Bank  v.  McKellar,  44  La. 

Stienle  v.  Bell,  12  Abb.  Pr.  (N.  S.  )171 ;  Ann.  940. 

Bixby  V.   Smith,   49   How.    Pr.   50;  5  citizens'    Bank    v.   Hancock,   35 

(S.  C,  5  Thompson  &  C.   279) ;  Dron-  La.  Ann.  41. 

illard  v.  Whistler,  29  Ind.  552.  "  Hambrick  v.  Williams,  65  Miss.  18. 
iBriggs  V.   Hodgdon,  78  Me.  514. 


§§  so,  81.]  ATERilENTS    AXD    PKATEK.  61 

the  aifidavit,  as  a  general  rule;^  but  when  found  in  the  latter, 
it  is  said  the  court  has  jurisdiction  though  no  complaint  has 
been  filed,  so  that  defects  are  curable.-  When  complaint  has 
been  filed  its  defects  may  be  aided,  explained  and  sometimes 
eked  out  by  the  affidavit.^  And,  on  the  other  hand,  a  sworn 
petition  may  suppl}^  the  want  of  an  affidavit ;  it  would  be  one, 
and  would  answer  every  purpose  if  all  the  requirements  of 
the  statute  governing  should  be  observed. 

§  80.  The  petition  may  exceed  the  attachment  in  the  state- 
ment of  the  amount ;  that  is,  the  attachment  may  be  for  but 
a  part  of  the  plaintiff's  demand.* 

Failure  to  recite  matters  in  the  complaint  or  petition  which 
are  sworn  to  in  the  affidavit  is  irregular,  but  not  available  by 
a  junior  attacher  as  an  objection  sufficient  to  set  the  first  at- 
tachment aside.* 

§  81.  An  insufficient  affidavit  cannot  be  cured  by  the  aver- 
ments of  the  petition.  The  affidavit  is  not  a  part  of  the  plead- 
ings, nor  are  the  pleadings  any  substitute  for  the  affidavit. 
Though  a  sworn  petition  may  embrace  the  character  of  both 
a  petition  and  an  affidavit,  it  should  be  separate,  for  various 
apparent  reasons ;  especially  when  the  practice  is  against  stat- 
ing the  grounds  for  an  attachment  in  the  petition.** 

The  plaintiff,  as  a  prerequisite  to  the  obtaining  of  a  writ  of 
attachment,  must  insert  in  his  petition,  if  that  is  to  take  the 
place  of  an  affidavit  or  perform  its  office,  that  the  debt  sued 
for  is  just,  due,  or  w^hatever  else  may  be  specified  by  the  stat- 
ute which  governs  him.'  If  the  petition  is  not  sufficient  as 
an  affidavit,  its  subsequent  amendment  will  not  avail. 

J  Garrett  v.  Taj^lor,  88  Ga.  457.  was  held  in  Louisiana  (where  peti- 

^  Lehman  v.  Lowman,  50  Ark.  444.  tions  are  not  sworn  to)  that,  if  the 

?Clarkz7.  Miller  (Ky.),  10  S.W.  277;  absence  of  the  plaintiff  is  disclosed 

Kolb  V.  Cheney,  63  Ga.  688 ;  King  v.  therein,  it  need  not  be  shown  by  the 

Tiiompson,  59  id.  380.  affidavit.    Farley  v.  Farior,  6  La.  Ann. 

^Dwyer  V.  Testard,  65  Tex.  433.  725.     Indebtedness  stated  onh'  in  the 

s Baker  v.  Ayers  (Ark.),  25  S.  W.  bill:  Foster  r.  Hall,  4  Humph.  (Tenn.) 

834;  Sannoner  v.  Jacobson,  47  Ark.  346;  and  that  defendant  was  about 

31 ;  Rice  v.  Dorrian,  57  id.  545.  to  remove  property :  Lester  v.  Cum- 

6  Harrison  v.  King,  9  Ohio  St.  338.  mings,  8  Humph.  385.     But  the  lat- 

■^Endel  v.   Leibrock,  33  Ohio  St.  ter  is  a  ground  for  attachment,  and 

254;  Garner  v.  White,   23  id.    192;  must  be  supported  by  oatli. 

Dunlevy  v.  Schwartz,  17  id.  640.     It 


62  PETITION   AND    CAUSE    OF   ACTION.  [§§  82,  83. 

§  82.  Though  the  petition  may  supply  deficiencies  of  the 
affidavit,  if  made  upon  the  oath  of  the  petitioner,^  yet  if  the 
allegations  are  not  made  on  personal  knowledge,  the  affidavit 
is  not  aided  by  reference  to  it  as  to  matters  which  must  be 
stated  on  such  knowledge.^ 

The  petition  and  affidavit  must  correspond  in  all  essentials. 
Conflict  as  to  the  time  of  the  maturity  of  the  debt  is  fatal. ^ 
In  such  a  case,  however,  the  plaintiff  has  been  allowed  to  file 
a  new  affidavit.*  An  affidavit  may  be  explained  and  aided 
by  the  petition  w^hen  the  claim  is  not  fully  stated  in  the 
former;^  but  not  if  the  petition  itself  is  contradictory  in  its 
statements.^  When  an  attachment  record  is  offered  in  evi- 
dence in  another  case,  the  petition  may  supply  a  lacking  affi- 
davit even  as  to  the  ground  of  non-residency,  it  has  been  held.^ 
If  the  record  shows  that  an  affidavit  was  filed,  and  the  peti- 
tion does  not  aver  the  filing,  there  is  no  fatal  error  of  plead- 
ing, provided  there  is  reference  to  the  affidavit,  so  that  the 
filing  may  be  inferred.^  It  is  otherwise  when  there  is  nothing 
from  which  the  inference  can  be  drawn. ^ 

§  83.  Where  the  petition  stated  the  amount  due  as  less  than 
that  stated  in  the  affidavit  and  writ,  the  attachment  was 
quashed.^**  But  in  Colorado,  when  the  petition  varied  with 
the  affidavit  as  to  the  amount  of  damage  claimed,  the  attach- 
ment was  sustained. ^^ 

If  a  note,  sued  upon  and  attached  to  the  petition,  shows 
that  it  IS  not  due,  neither  the  petition  or  affidavit  need  aver 
the  same  fact,  it  is  held.^-    But  all  the  necessary  facts  must 

1  Wirt  V.  Dinan,  44  Mo.  App.  583 ;  State  v.  Williams,  77  Mo.  463 ;  Ed- 
Shaffer  V.  Sandwall,  33  la.  579 ;  Scott  mundson  v.  Phillips,  73  id.  57 ;  Hurt 
V.  Doneghy,  17  B.  Mon.  321;  Watts  v.  Hahn,  61  id.  496;  Schultz  v.  In- 
V.  Harding,  5  Tex.  386;  Wessels  v.  surance  Co.,  57  id.  331;  Corpenny 
Boettcher,  69  Hun,  306.  v.  Sedalia,  57  id.  88. 

2  Haebler  v.  Bernharth,  115  N.  Y.  ^  Staley,  etc.  v.  Wallace,  21  Mo.  App. 
459.  129 ;  Schaller  v.  Van  Warmer,  33  Mo. 

3  Evans  v.  Tucker,  59  Tex.  249.  387. 

4  Dalsheimer  v.  McDaniel,  69  Miss.  i"  Moore  v.  Corley  (Tex.),  16  S.  W. 
839.  787. 

5  Hart  V.  Barnes,  24  Neb.  782.  ii  De  Stafford  v.  Gartley,  15  Colo. 

6  Marshall  v.  Alley,  25  Tex.  342 ;  32 ;  Code  Civ.  Proc,  §  96 ;  Gen.  Stat. 
Meyer  v.  Evans,  27  Neb.  367.  Colo.,  ch.  25.  §  223. 

7  Miller  v.  Chandler,  29  La.  Ann.  88.  i-'  Panhandle  N.  Bank  v.  Still  (Tex.), 

8  State  V.  Pace,  34  Mo.  App.  458 ;  19  S.  W.  479. 


§§  84,  85.]  AMENDMENTS.  63 

appear  in  the  affidavit,  if  no  petition  has  been  filed,^  —  though 
there  need  be  nothing  anticipatory  of  defenses.- 

It  is  held  that  a  proceeding  to  dissolve  the  attachment,  and 
not  demurrer  to  the  petition,  is  the  proper  remedy,  where  the 
cause  of  action  does  not  warrant  the  extraordinary  remedy.' 

II.  Amendments. 

§  84.  When  allowed. —  If  there  is  a  serious  blunder  in  the 
petition  which  the  affidavit  cannot  relieve,  such  as  the  mis- 
joinder of  defendants,  the  plaintiff  should  amend,  if  allowed.^ 
There  can  be  no  joinder  of  plaintiffs,  each  having  a  separate 
claim.''  When  both  the  petition  and  affidavit  were  defective 
as  to  the  maturity  of  the  debt,  the  plaintiff  was  allowed  to 
cure  the  defect  by  an  amended  petition ;  ^  but  this  should  not 
be  permitted  after  the  levy  where  attachments  are  confined 
to  debts  due,  and  oath  to  the  fact  of  maturity  is  jurisdictional. 
But  it  has  been  held  that  the  petition  may  be  amended  to 
correspond  with  the  writ  and  affidavit  after  the  issue  of  the 
writ.^ 

A  petition  alleged  that  the  defendant  was  indebted  to  the 
plaintiff  on  a  promissory  note  described.  Upon  the  defend- 
ant's denial  that  he  had  executed  the  note,  the  plaintiff 
amended  by  alleging  that  he  had  loaned  money  to  the  defend- 
ant and  that  the  debt  was  due  when  the  suit  was  instituted. 
The  attachment  was  sustained  —  the  indebtedness  was  held  to 
have  existed  when  the  writ  was  issued.^ 

§  85.  As  to  cause  of  action. —  A  petition  on  a  promissory 
note  was  amended  to  aver  that  the  defendant  had  agreed  to 
pay,  for  a  valid  consideration  paid  by  the  maker ;  the  court 
holding  that  the  amendment  did  not  state  a  cause  of  action 
different  from  that  alleged  in  the  original  petition,  which 

1  Fisher  v.  Secrist,  48  Fed.  264.  *  Starr  v.  Mayer,  60  Ga.  546. 

2  Essex  Co.  Bank  v.  Johnson,  61  &  Corrothers  r.  Sargent,  20  W.  Va. 
Hun,  625.  351. 

3  Rich  V.  Thornton,  69  Ala.  473;  6  Panhandle  N.  Bank  u  Still  (Tex.), 
Brown  v.  Coats,  56  id.  439 ;  Wright  19  S.  W.  479. 

V.  Snedicor,  46  id.  92 ;  Van  Dyke  v.        ''  Puckett  v.  Drug  Co.  (Tex.  App.), 

State.  24  id.  81 ;  Roberts  v.  Burke,  6    20  S.  W.  1127. 

id.  348;   Cain  v.   Mather,  3  Porter,        ^Cawker,   etc.   Bank  v.  Jennings 


oo 


4.  (la.),  56  N.  W.  494. 


64  PETITION    AND    CAUSE    OF    ACTION.  [§§  86,  87. 

averred  that  the  defendant  was  liable  as  the  surviving  part- 
ner of  the  firm  which  had  made  the  note.  The  defendant's 
liability  being  alike  under  either,  the  attachment  under  the 
first  averment  could  not  be  dismissed  under  the  second.^  If  a 
new  cause  of  action  is  to  be  alleged,  it  must  be  by  a  new  sup- 
plemental or  amended  petition,'^  but  it  would  have  no  effect 
on  the  attachment  already  laid.  If  the  original  petition  sets 
forth  no  cause  of  action  for  attachment,  its  amendment  after 
the  levy  would  be  too  late.^  'New  counts,  not  called  for  by 
the  original  declaration  or  necessary  to  complete  it,  will  be 
deemed  new  matter  as  a  general  rule.*  But  it  is  held  that  the 
senior  attacher  does  not  lose  his  rank  by  adding  an  additional 
item  of  claim.^ 

§  86.  Clerical  errors.  —  The  correction  of  an  error  in  a  name 
is  allowable  in  a  petition.^  The  correction  of  any  merely 
clerical  error  of  the  petition  by  the  first  attacher,  after  a 
second  attachment  has  been  laid  by  another  creditor,  would 
not  cause  the  first  to  lose  his  rank;  but  if  there  be  a  radical 
change,  the  result  would  be  otherwise.'^  It  would  not  matter, 
however,  if  the  amount  of  the  claim  should  be  increased,  for 
that  would  not  make  the  attachment  cover  the  addition,^  nor 
would  any  similar  change  in  the  petition  be  fatal  to  an  attach- 
ment already  laid. 

§  87.  As  to  iKirties. —  An  amendment,  to  make  a  partner  of 
the  plaintiff  firm  a  party  to  the  suit,  was  held  not  to  affect 
the  lien.^  An  attachment  suit,  brought  by  an  emancipated 
minor,  was  held  not  demurrable  but  amendable  by  substituting 
the  name  of  a  guardian  appointed  to  represent  him,  according 
to  the  Montana  Code  of  Civil  Procedure,  §  9.     The  amend- 

1  Massey  v.  Blake,  3  Tex.  Civ.  App.  5  Schneider  v.  Roe  (Tex,),  25  S.  W. 

57;  Jones  v.  Blake,  id.  783;  Landa  58. 

V.  Obert,  78  Tex.  46 ;  Lee  v.  Boutwell,  6  Cain  v.  Rockwell,  132  Mass.  193 ; 

44  id.  152;  Roe  v.  Holbert  (Tex.  Civ.  Wight  v.  Hale,  2  Cush.  486. 

App.),    18  S.   W.   417;    Svveetzer    v.  '  Suksdorff   v.    Bigham,    13    Oreg. 

Claflin,    82  Tex.   513 ;    Compress   v.  369.    In  this  case  it  was  further  held 

Mitchell  (Tex.),  14  S.  W.  275.  that  the  first  attacher  may  increase 

-  McRee  v.   Brown,   45  Tex.   503 ;  the  amount  of  his  claim,  by  amend- 

Stewart  v.  Anderson,  70  id.  588.  ing,  without  losing  his  priority  over 

3  Pope  u  Hibernia  Ins.  Co.,  24  Ohio  the  second  attache!'. 

St  481.  6  Cutler  v.  Lang,  30  Fed.  173. 

4  Austin  V.  Burlington,  34  Yt.  506.        9  Henderson  v.  Stetter,  31  Kan.  56. 


I  SS.]  AMENDMENTS    AFFECTING    DEFENDANT.  65 

ment  did  not  affect  the  attachment  to  the  injuiy  of  the  de- 
fendant.^ Ordinarily  it  would  be  ground  for  abatement.^  A 
suit  agrainst  a  minor  is  no  more  allowable  in  attachment  cases 
than  in  any  other.  The  defendant  must  be  one  who  can  stand 
in  court.  An  attachment  against  the  defendant  "and  his 
heirs"  shows  that  it  is  against  a  dead  man,  and  therefore  void.' 
The  jDctition  in  an  attachment  case  based  on  tort  as  the 
cause  of  actiQU  was  amended  after  another  attachment  had 
bee  1  laid ;  the  court  holding  that  the  facts  averred  in  the 
original  petition  warranted  an  action  on  contract.* 

III.    Amendments  Affecting  the  Defendant. 

§  88.  Effect. —  A  petitioi  may  be  amended,  under  leave  of 
court,  by  supplement  or  otherwise ;  but  if  the  object  is  to  ren- 
der a  void  attachment  valid,  the  amendment  would  not  have 
that  effect.  If,  for  instance,  thu  petition  has  been  filed  under 
oath,  and  no  other  affidavit  is  made,  the  amendment  might 
cure  the  errors  of  the  petition  but  not  those  of  the  affidavit  — 
considering  the  sworn  petition  as  such.^  An  amendment  re- 
lates to  the  commencement  of  the  suit,  if  the  proceeding  is 
founded  on  a  proper  cause  of  action."  It  should  never  be  per- 
mitted when  it  would  work  injury  to  any  party  in  the  case  — 
intervenor,  defendant  or  surety.  When  a  motion  to  vacate 
an  attachment,  as  void,  is  pending,  no  amendment  of  the  peti- 
tion should  be  allowed,  as  a  general  rule.^  If  there  has  been 
a  departure  from  the  usual  practice, —  such  as  failure  to  attach 

1  Hoskins  v.  "White  (Mont.),  33  P*  its  defects  as  an  affidavit     And  the 

163.    See  Young  v.  Young,  3   N.  H.  court  said :  '■  By  an   unbroken   line 

345 ;  Blood  v.  Harrington,  8  Pick.  553.  of  decisions  from  the  days  of  the  re- 

-  Drago  V.  JIoso,  40  Am.  Dec.  593 ;  public  until  the  present  time,  an  affi- 

Moke  V.  Fellman,  67  Am  Dec.  656.  davit    for    attachment    cannot    be 

3  Purnell  v.  Frank,  68  Miss.  639.  amended."    See  Brack  v.  McMahon, 

4  Bank  of  Garfield  Co.  v.  Bingham  61  id    1. 

(Oreg.),  13  P  1.  6  Tarkinton   v.  Broussard,  51  Tex. 

5  In  Marx  v.  Abraham,  53  Tex.  364,  550;  Pearce  v.  Bell,  31  Tex.  690.  A 
the  plaintiff  had  sworn  to  the  peti-  new  count,  as  to  the  debt,  would  so 
tion  without  any  separate  affidavit ;  relate.  Mendes  v.  Fi'eiters,  16  Nev. 
the  petition  was  insufficient  as  an  388. 

affidavit ;  the  petition  was  amended :        ^  Chattahoochee  Brick  Co.  v.  Sulli- 
held  that  the  amendment  cured  the    van,  86  Ga.  50. 
defect  of  the  petition,  as  such,  but  not 


66  PETITION    AND    CAUSE    OF    ACTION.  ,  [§  89. 

the  affidavit  to  the  petition  when  that  is  the  legal  course, — 
the  cause  should  not  be  dismissed  nor  the  attachment  dis- 
solved, since  it  is  within  the  power  of  the  complaining  party 
to  require  a  copy  of  the  omitted  paper  to  be  supplied.^ 

§  89.  If  the  court  already  has  jurisdiction  but  the  averments 
of  the  petition  fail  to  show  it,  it  has  been  held  that  there  may 
be  amendment  supplying  the  defect,  and  that  it  will  relate 
to  the  filing  of  the  original  petition.  Failure  to  aver  that  the 
parties  were  citizens  of  different  states  was  allowed  to  be 
cured  in  this  way.  The  court,  so  allowing,  said :  '•  It  is  every- 
day practice  to  allow  amendments  of  the  character  of  those 
made  in  this  case,  and  when  they  are  made  they  have  relation 
to  the  date  of  the  filing  of  the  complaint  or  the  issuing  of  the 
writ  or  process  amended.  When  a  complaint  is  amended,  it 
stands  as  though  it  had  originally  read  as  amended.  The 
court  in  fact  had  jurisdiction  of  the  cause  from  the  beginning, 
but  the  complaint  did  not  contain  the  requisite  averments  to 
show  it.  In  other  words,  the  averment  did  not  create  or  con- 
fer the  jurisdiction;  it  only  brought  on  the  record  a  proper 
averment  of  a  fact  showing  its  existence  from  the  commence- 
ment of  the  suit.  I 

"  The  right  of  the  federal  court  to  allow  amendments  under 
section  95J:  of  the  Revised  Statutes  of  the  United  States  is 
well  settled.  The  right  exists  quite  independently  of  any 
state  statute,  and  may  be  exercised  at  any  stage  of  the  cause, 
even  after  submission,  and  extends  to  the  verdict  and  judg- 
ment, and  is  as  applicable  to  attachment  suits  as  to  any 
others."  ^ 

It  will  be  observed  that  in  this  case  "the  court  had  jurisdic- 
tion of  the  cause  from  the  beginning:"  so  where  jurisdiction 
depends  upon  compliance  with  statute,  non-compliance  cannot 
be  supplied  by  amendment  and  this  decision  relied  upon  lor 
authority.     If  the  essentials  of  an  affidavit  for  attachment  are 

1  Olmstead  v.  Rivers,  9  Neb.  234  Construction  Co.  v.  Seymour,  id.  646, 

2Bowden  v.  Bmnham,  59  Fed.  754,  655;  Hardin  v.  Boyd,  113  U.  S.  756; 

citing  Tilton  v.  Cofield,  93  U".  S.  163 ;  Tiernan's  Ex'rs  v.   Woodruff,  5   Mc- 

O'Connell    v.    Reed,     56    Fed.     531 ;  Lean,  135 ;  Parks  v.  Turner,  13  How. 

People's   Bank   v.   Egg-Case  Co.,  51  39,  46;  Stockton  v.   Bishop,  4  How. 

id.  130;  Erstein  v.  Rothschild,  22  id.  155, 168;  Swatzelu  Arnold,  1  Woolw. 

61 ;  Bamberger  v.  Terry,  103  U.  S.  40 ;  383. 

Dow  V.  Humbert,  91  U.  S.  294,  297 ; 


^§  90,  91.]  AMENDMENTS    AFFECTING   DEFENDANT.  67 

wanting,  the  extraordinary  remedy  cannot  be  rendered  valid 
from  the  beginning  by  amendment. 

The  defendant  may,  of  course,  take  advantage  of  radical 
mistakes  in  the  petition,  sucli  as  a  declaration  on  an  "  account 
stated  "  instead  of  a  declaration  "for  goods  sold  and  delivered," 
in  states  where  such  particularity  is  important.^  An  inter- 
vener could  not  avail  himself  of  such  error.^ 

§  90.  As  to  2)ersonal  suit —  The  general  rule  is :  if  the  decla- 
ration is  demurrable,  the  attachment  must  be  quashed.'  Of 
course  the  converse  is  not  true;  for  an  attachment  may  be 
dissolvable  yet  the  petition  hold  good ;  it  may  be  good  plead- 
ing in  the  personal  action,  correctly  setting  forth  the  indebt- 
edness and  properl}^  praying  for  judgment,  jet  not  alleging 
statutory  grounds  for  attachment ;  and  there  may  be  no  affi- 
davit or  no  sufficient  one. 

A  plea  to  the  jurisdiction  may  be  sustainable  with  reference 
to  the  ancillary  suit  yet  not  to  the  principal ;  for  though  the 
petition  may  be  good  and  the  defendant  may  have  been  served 
with  summons,  ma}''  have  appeared,  may  have  even  joined 
issue  in  the  main  case,  he  may  yet  set  up  that  the  court  has 
no  power  and  authority  to  hear  and  determine  the  ancillary 
proceeding  because  the  attachment  was  made  without  affidavit 
or  without  bond,  or  without  such  affidavit  and  bond  as  the 
statute  requires,  and  that  there  was  therefore  no  authority  to 
issue  the  writ  under  which  the  attachment  was  made. 

Some  of  the  states  have  fixed  a  limit  to  the  amount  of  the 
debt,  so  that  in  a  suit  for  a  sum  below  that  limit  an  attach- 
ment will  not  lie.  In  others  there  is  virtual  limitation  by 
the  confinement  of  the  remedy  to  courts  in  which  there  is  no 
jurisdiction  in  suits  on  demands  below  some  specified  amount.* 

§  91.  As  to  sureties. —  A  surety  brought  an  attachment  suit 
against  his  principal  for  indemnity.  There  was  an  intervention 
by  attachment.  The  surety  amended  his  petition  by  alleging 
that  the  debt  for  which  he  was  surety  had  become  due  and 
had  been  paid  by  him.  His  attachment  ranked  above  that  of 
the  intervenor.^ 

1  Mendes  v.  Freiters,  16  Nev.  388.  ^  May  v.  Sibley,  60  Ga.  133 ;  Bain  v. 

2  Id.  Mitchell,  82  Ala.  304 

3  National  Bank  V.  Teal,  4  Hughes,  5  Bamberger  v.  Moayon  (KJ^),  16 
572.  S.  W.  27G.    See  Meyer  v.  Ruff  (Ky.), 


68  PETITION    AND    CAUSE    OF    ACTION.  [§  92. 

Sureties  on  an  attachment  bond  are  not  discharged  by  an 
amendment  of  the  petition  which  does  not  make  their  position 
■worse  or  different.^  By  the  addition  of  several  co-plaintiffs 
against  the  defendant's  remonstrance,  the  sureties  on  his  dis- 
solution bond  were  held  to  have  been  released.^  But  such 
sureties  were  not  released  by  the  insertion  of  a  new  count  in 
an  attachment  suit  for  personal  injuries.^ 

lY.  "When  Petition  Should  be  Filed. 

§  92.  The  time  relative  to  the  ivrit. —  The  logical  order  of 
pleading  requires  that  the  statement  of  the  grounds  and  the 
praj'^er  for  the  writ  should  precede  the  filing  of  the  affidavit 
or  accompany  it.  In  practice,  owing  to  the  hurry  frequently 
attending  the  bringing  of  attachment  proceedings  (as  when 
goods  are  just  about  being  spirited  away),  the  order  is  some- 
times reversed  —  the  affidavit  being  filed  and  the  writ  issued 
before  the  filing  of  the  petition.  Ko  harm  can  ensue  from 
such  practice  if  the  petition  is  filed  on  the  same  day  or  within 
reasonable  time.  Courts  will  not  hypercritically  note  the 
hours,  if  both  the  petition  and  the  affidavit  have  been  filed 
before  the  issue  of  the  writ,  though  the  petition  come  later 
than  the  oath.  But  when  a  writ  was  served  at  3  P.  M.,  and 
the  petition  filed  at  6  P.  M.  of  the  same  day,  the  attachment 
was  held  invalid.* 

Courts  might  properly  refuse  to  issue  the  writ  without  the 
prayer  for  it;  but  if,  in  their  discretion  and  in  the  confi- 
dence which  should  exist  between  them  and  practicing  at- 
torneys, the  logical  order  should  be  reversed  for  a  brief 
period,  the  debtor  can  have  no  cause  to  complain.  Courts 
should  not  grant  the  writ  without  a  duly  filed  petition  for  it, 
when  aware  of  a  pending  contest  between  creditors,  if,  by 
granting  it,  one  would  thus  acquire  an  undue  advantage  over 
another. 

Where  the  question  of  priority  among  attaching  creditors 
depends  upon  the  order  in  which  writs  are  delivered  to  the 

16  S.  W.  84;  Martz  v.  Pfeifer,  80  Ky.  3  Doran  v.  Cohen,  147  Mass.  342. 

600.  4Seibert  v.   Switzer,  35   Ohio  St. 

1  Kellogg  V.  Kimball,  143  Mass.  125.  661. 

2  Furness  v.  Read,  63  Md  1. 


§  93.]  WHEN   PETITION    SHOULD   BE    FILED.  69 

sheriff,  the  filing  of  the  petition  (or  of  the  initial  pleading  re- 
quired for  the  institution  of  the  suit  according  to  the  practice 
of  the  state  where  the  suit  is  brought)  should  always  precede 
the  issuance  of  the  writ;  otherwise,  a  junior  attacher  may 
show  that  a  writ,  claiming  to  be  prior  to  his,  was  issued  with- 
out legal  authority.^  Even  the  first  levy  will  fail  to  give  pri- 
ority if  made  before  the  filing  of  the  petition  asking  for  it, 
(or  before  the  commencement  of  the  suit  in  rightful  form), 
though  the  affidavit,  bond  and  writ  may  all  be  older  than  the 
initial  pleading  of  the  creditor  who  has  made  a  later  levy  in 
strict  compliance  with  law.-  Indeed,  the  auxiliary  proceeding 
depends  for  its  legal  existence  upon  the  institution  of  the 
principal  suit;  and,  without  the  latter,  there  is  no  authority 
for  issuing  a  writ  of  attachment.*  If  issued,  the  writ  is  void; 
and  if  a  non-resident's  property  be  seized  under  it,  there  can 
be  no  legal  notice  of  publication,  and  the  court  would  not  ac- 
quire jurisdiction.* 

§  93.  Attacliment  separately  sued  out. —  A  principal  suit,  and 
an  attachment  in  aid  of  it  separately  sued  out,  may  be  brought 
on  t4ie  same  day  or  even  simultaneously ;  and  both  ought  to 
be  entitled  in  the  same  case.  They  would,  however,  be  so  far 
separate  and  distinct  proceedings  that  a  defense  to  the  an- 
cillary would  not  necessarily  apply  to  the  principal  action.^ 
Whether  instituted  separately  or  not,  the  principal  suit  and 
the  attachment  proceeding  are,  in  many  respects,  two  differ- 
ent actions;  ^  and  tlije  latter  should  not  precede  the  former  in 
the  order  of  institution,  for  the  reason  that  it  is  ancillary  in 
character."  "Wherever  the  plaintiff  is  required  to  declare  upon 
an  attachment  consummated,  the  practice  is  different  fron-i 
that  above  considered.^ 

1  Ward  V.  Howard,  12  Ohio  St.  158.  5  Schulenberg  v.  Farwell,  84111.  400. 

2  Seibert  v.  Switzer,  35  Ohio  St.  ^  Ervvin  v.  Heath,  50  Miss.  795 ;  De 
661.  Leon  v.  Heller,  77  Ga.  740. 

3  Kerr  v.  Mount,  28  N.  Y.  659 ;  '  Furman  v.  Walter,  13  How.  Pr. 
Waffer  V.  Goble,  53  Barb.  517;  Kel-  348;  Marsh  v.  Williams,  63  N.  C. 
ley  V.  Strayer,  15  Hun,  97;  Pope  v.  371;  Moore  v.  Sheppard,'  1  Met.  (Ky.) 
Hibernia  Ins.  Co.,  24  Ohio  St  481;  97;  Duncan  v.  Wickliffe,  4  id.  118; 
Endel  v.  Leibrock,  33  id.  254 :  Woos-  Frankeuheimer  v.  Slocum,  24  Ala. 
ter  u  McGee,  1  Tex.  17.  373;    Fechheimer  v.   Hays,    11   Ind. 

*  Endel  v.   Leibrock,  33  Ohio  St.     478. 
254.  s  Thomas  v.  Brown,  67  Md.  512. 


YO  PETITION    AND    OATJSE    OF    ACTION.  [§  94. 

After  a  petition  has  been  filed  and  writ  issued,  successive 
attachments  may  be  laid  under  it,  against  the  same  defend- 
ant, and  the}^  may  be  weeks  or  months  apart  from  each  other. 
Several  attachments  may  be  made  simultaneously  in  different 
counties  under  the  same  petition  in  Texas. ^ 

When  the  plaintiff  files  a  petition  containing  all  that  should 
be  in  an  affidavit,  and  sv\^ears  to  it,  he  need  not  file  a  sepa- 
rate oath  of  the  facts  on  which  he  asks  that  the  writ  may 
issue.^  In  such  case  the  paper  filed  need  not  be  good  as 
pleading,  but  it  must  be  good  as  an  aifidavit,  in  order  to  war- 
rant the  granting  of  the  attachment:  its  quality  as  pleading 
may  bide  its  time  to  be  tested.  It  may  be  in  the  form  of  an 
affidavit  yet  contain  besides  all  the  essentials  of  a  petition.^ 


V.  Action  on  Breach  of  Conteact. 

§  94.  Cause  of  action. —  The  most  general  (and  formerly  the 
only)  application  of  the  remedy  by  attachment  is  to  aid  the 
creditor  in  collecting  debt  due  him  upon  breach  of  the  con- 
tract to  pay,  when  any  statutory  ground  for  it  exists.*  It 
may- be  the  breach  of  a  covenant  of  warranty,^  or  of  a  contract 
to  deliver  property.^    Upon  breach  of  contract  debt  arises.'^ 

An  action  for  breach  of  war^ranty  of  title  has  been  held  such 
as  to  warrant  the  remedy  of  attachment  under  a  statute  au- 
thorizing that  remedy  in  aid  of  any  "  moneyed  demand."  ^ 
Even  an  action  for  damages  ex  delicto  has  been  included 
within  the  general  authorization  of  attachment  "  for  the  re- 

1  Sayles'  Civ.  Stat,  art.  161 ;  Brad-  v.  Hovey,  21  Pick.  445 ;  Weaver  v, 
shaw  V.  Tinsley  ^Tex.),  23  S.  W.  184.  Puryear,  11  Ala.  941. 

2  Miller  v.  Chandler,  29  La.  Ann.  5  Cheney  v.  Straube  (Neb.),  53  N. 
88 ;  Watts  v.  Harding,  5  Tex.  386,  W.  479 ;  Weaver  v.  Puryear,  11  Ala. 

3  Dunn  V.   Crocker,   22  Ind.   324;  941. 

Shaffer  v.  Sundwall,  33  la.  579 ;  Scott  «  Stiff  v.  Fisher,  2  Tex.  Civ.  App. 

V.  Doneghy,  17  B.  Mon.  321.  346 :  Stiff  v.  Stevens,  id.  295. 

4  Boyer  v.  Bullard,  102  Pa.  St.  555 ;  ^  Lenox  v.  Howland,  3  Caines  (N. 
Garland  v.  Cunningham,  37  id.  228 ;  Y.),  323 ;  Fisher  v.  Consequa,  2  Wash. 
Seeley  v.  Mo.  etc.  R.  Co.,  39  Fed.  252 ;  C.  C.  383 ;  Jacoby  v.  Gogell,  5  S.  & 
Dunn  V.  Mackey,  80  Cal.  104 ;  Whit-  Rawle,  450.  Compare  Atlantic  Ins. 
ney  v,  Hirsch,  39  Hun,  325 ;  Marty,  Co.  v.  McLoon,  48  Barb.  27. 

In  re,  3  Barb.  229 ;  Milldam  Foundry        8  Guy  v.  Lee,  81  Ala.  163. 


§  95.]  ACTION    ON    BEEACH    OF    CONTRACT.  71 

covery  of  money."  ^  But  where  there  must  be  a  written  in- 
strument for  the  direct  payment  of  money,  attachment  will 
not  be  issued  to  aid  a  suit  on  an  appeal  bond.^  "While  breach 
of  promise  to  marr}^  is  not  a  cause  of  action  for  attachment 
in  the  states  generally,^  the  demand  for  damages  in  such  suit 
is  a  "money  demand." 

§  95.  The  rule  is  that  attachment  will  not  lie  on  a  claim  for 
unliquidated  damages  for  breach  of  contract.**  But  it  is  held 
that  "  if  the  contract  itself  fixes  the  amount  due,  or  affords  by 
its  terms  a  certain  measure  for  ascertaining  the  amount,  an 
attachment  will  lie  if  the  necessary  jurisdictional  facts  ap- 
pear." ^  Though  attachment  may  lie,  under  a  statute,  for 
failure  to  pay  the  price  of  goods  delivered  under  a  contract 
to  pay  on  delivery,  the  time  of  payment  may  be  modified  by 
agreement  so  that  the  action  would  not  lie  under  the  statute.^ 
A  suit  to  enforce  liability  under  statute  cannot  be  aided  by 
attachment  as  though  upon  contract.^  But  a  suit  on  an  at- 
tachment bond  is  a  suit  on  contract  and  may  be  aided  by 
attachment.^ 

An  action  to  collect  subscription  to  stock  is  upon  contract 
and  may  be  by  attachment.^  It  may  be  against  a  stockholder 
to  recover  his  portion  of  a  debt  due  to  the  plaintiff  by  the 
corporation  in  which  the  stock  is  held.^"  But  the  stockholder's 
property  cannot  be  attached  for  the  whole  debt,  though  the 
debt  be  no  greater  than  the  value  of  his  own  shares.^^ 

1  Davidson  v.  Owens,  5  Minn.  69.  5  Derrickson  v.   Shovvell  (Md.),   28 

2Hurd  V.  McClellan,  14  Colo.  213.  A.  896;  Ins.  Co.  v.  Andrews,  66  Md. 

S'ee  Stebbins  u  Anthony,  5  Colo.  348 ;  371;  McAllister  v.   Eichengreen,   34 

People  V.  Boylan,  25  Fed.  594.     Com-  id.  54 ;  Warwick  v.  Chase,  23  id.  154. 

pare  Hathaway  v.  Davis,  33  Cal.  162.  The  plaintiff  must  give  bond  in  an 

3  Price  V.  Cox,  83  N.  C.  261 ;  Wil-  attachment  for    unliquidated   dam- 
son V.  Manuf.  Co.,  88  N.  C.  5 ;  Barns  ages  in  Maryland.     Code,  art.  9,  §  43. 
V.  Buck,  1  Lansing  (N.  Y.),  268 ;  Thorn  6  Young  v.  Lynch,  30  Kan.  205. 
V.  Knapp,  42  N.  Y.  474.  "  Remington  Paper  Co.  v.  O'Dough- 

•»  Hochstadler  v.  Sam,  73  Tex.  315 ;  erty,  32  Hun,  255. 

Hecksher  v.  Trotter,  48  N.  J.  L.  419;  « Withers  v.  Brittain,  35  Neb.  436. 

Moore    v.   Dickerson,   44    Ala.   485 ;  9  Kohler  v.  Agassiz,  99  Cal.  9. 

Hall   V.   Page,  4  Ga,   428.    But  see  i"  Kennedy  v.  California  Bank,  97 

Baumgardner  v.  Dowagiac  Man.  Co.,  Cal.  93. 

50  Minn.   381;  Tenn.  River  Transp.  "Id. 
Co.    V.    Kavanaugh,    93    Ala.    324; 
Steadham  v.  Parrish,  93  Ala.  465. 


72  PETITION    AND    CAUSE    OF    ACTION.  [§§  9G,  97. 

§96.  Promissory  note. —  The  renewal  of  a  note  creates  a 
debt  upon  contract  within  the  attachment  statute.^  A  note 
not  clue  cannot  be  sued  upon  by  attachment  under  the  au- 
thorization of  the  remedy  to  aid  "any  money  demand."^  The 
drawer  of  an  accommodation  note,  upon  its  being  paid  by 
him  and  surrendered  to  him,  cannot  attach  property  of  his 
principal  on  the  statutory  ground  in  Colorado  that  the  action 
is  on  a  note,  past  due,  for  unconditional  payment.^ 

Debt  is  not  due  by  an  indorser  till  notice  of  the  maker's 
default ;  so  attachment  will  not  lie  against  him  before.*  The 
drawer  of  a  check  was  held  liable  only  for  the  sum  stated  by 
him  therein,  though  the  check  may  have  been  raised  by  a 
holder  and  paid  by  tlie  bank  without  discovery  of  the  fraud. 
Only  the  original  amount  can  be  sued  upon  as  due,  and  en- 
forced by  attachment.^  A  bank  sells  its  draft  on  another 
bank  for  cash :  this  creates  no  attachable  debt  in  a  suit  against 
the  purchaser  while  the  draft  is  outstanding  without  default.'^ 

§  97.  Implied  contract.— In  a  state  where  attachment  must 
be  for  debt  due  upon  contract  express  or  implied,  it  was  held 
that  embezzlement  was  a  breach  of  the  contract  of  employ- 
ment, and  that  conversion  created  an  implied  contract.'  This 
effect  of  conversion  is  recognized  in  sev^eral  states,  to  the  ex- 
tent that  suit  may  be  brought  for  the  value  of  the  converted 
property  while  it  still  is  in  the  possession  of  the  wrong-doer.^ 
In  othei's,  the  property  must  first  be  disposed  of  —  changed 
into  money .^  Even  if  a  judgment  has  been  rendered  for  a 
wrong  done,  and  action  to  recover  brought  upon  it,  the  suit  is 
not  upon  contract  express  or  implied.^" 

1  Stevens  Point  Bank  v.  Rosenfield,  ^  Jones  v.  Gregg,  17  Ind.  84 ;  Eogevs 
66  Wis.  292.  v.   Arnold,    12   Wendell,    30 ;    Cuui- 

2  Monroe  v.  Bishop,  29  Ga.  159 ;  mings  v.  Vorce,  3  Hill  (N.  Y.),  282 ; 
First  N.  Bank  v.  Moss,  41  La.  Ann.  Alsbrook  v.  Hathaway,  3  Sneed,  454 ; 
227;  Denegre  v.  Milne,  10  id.  324.  Goodenow  v.  Snyder.  3  la.  599. 

3  Fitch  V.  Hammer,  17  Colo.  591.  9  O'Reer  v.  Strong,  13  111.  688 ;  Elliot 

4  Claffin  Co.  V.  Feibleman,  44  La.  v.  Jackson,  3  Wis.  649 ;  Fuller  v. 
Ann.  518;  Ellis  v.  Harrison,  104  Mo.  Duren,  36  Ala.  73;  Smith  v.  Smith, 
270 ;  Cox  V.  Dawson,  2  Wash.  St.  381.  43  N,    H.   536 ;  Balch   v.  Patten,  45 

5Westcottv.  Sharp,  50N.  J.L.  392.  Me.  41;  Winchell  v.  Noyes,    23  Vt 

f- Capital  City  Bank  v.  Parent,  134  303;    Jones  v.   Hoar,   5    Pick.   285; 

N.  Y.  527.  Gray  v.  Griffith,  10  Watts,  431 ;  Cecil 

7  Farmers'  Bank  v.  Fonda,  65  Mich.  v.  Rose,  17  Md.  92. 

533 ;  Hancock  Ins.  Co.  v.  Moore,  12  ^  Id. ;   McCoun  v.   N.   Y.    Central, 

Mich.  42.  etc.,  50  N.  Y.  176 ;  O'Brian  v.  Young, 


§  98.]  DEBT  NOT  DUE  BUT  CERTAIN.  73 

YI.  Debt  Xot  Due  but  Certain. 

§  98.  When  action  lies. —  Where  attachment  is  allowed  on 
a  debt  not  due,  the  defendant  has  no  right,  in  a  case  on  notes 
not  due,  to  a  judgment  upon  the  merits  on  the  plea  that  the 
debt  had  not  matured  when  the  action  was  brought,  if  the 
plaintiff  is  within  the  statute  and  proves  the  ground  of  the  at- 
tachment.^ In  Alabama  the  remedy  applies  to  aid  a  debt  not 
due  when  fraud  is  charged;-  but  judgment  must  be  stayed 
till  the  maturity  of  the  debt.^  In  Missouri,  where  a  debt  not 
due  may  be  a  cause  of  action,  there  yet  can  be  no  attachment 
by  the  acceptor  of  a  bill  of  exchange  (to  accommodate  the 
drawer)  unless  the  bill  is  due  and  payment  has  been  made  on 
it  by  the  acceptor  in  w^iole  or  in  part.*  Prior  to  payment  he 
is  not  a  creditor. 

It  is  material  that  the  plaintiff  allege  in  his  petition  that 
the  debtor  has  fraudulently  disposed  of  his  property  when 
suing  upon  a  debt  not  due  in  the  state  of  Washington/^  Of 
course  the  ground  must  be  proved,  however  good  the  cause 
of  action  f  and  the  cause  of  action  must  be  proved  however 
good  the  ground.'^ 

Where  a  part  of  the  claim  is  due,  attachment  is  denied  in 
many  states  —  as  in  Illinois.^     Where  a  debt  due  and  one  not 

95  N.  Y.  428,  431 ;  Taylor  v.  Root,  4  2  Ware  v.  Seasongoocl  92  Ala.  152 ; 

Keyes,  335.    Compare  State  of  Louis-  Zelnicker  v.   Brigham,   74  id.    598 ; 

iana  v.  Mayor,  109  U.  S.  285 ;  Nazro  Hubbard  v.  Allen,  59  id.  283. 

V.  Oil  Co.,  36  Hun,  296 ;  Gutta  Percha  3  Jones  v.  Holland,  47  Ala.  732. 

Co.  V.  Mayor,  108  N.  Y.  276 ;   Gutta  4  Ellis  v.   Harrison,   104  Mo.    270 ; 

Percha  Co.  v.  Houston,  46  Hnn,  237 ;  Rev.  Stat,  of  Mo.  (1889),  §  532 ;  Hearne 

Donnelly  v.  Corbitt,  3  Said.  500.     See  v.  Keith,  63  Mo.  84 ;  Todd  v.  Shouse, 

further  as  to  attachment  suits  on  im-  14  La.  Ann.  426 ;  Read  v.  Ware,  2  id. 

plied  contracts,  Peat  Co.  v.  Tuck.  53  498. 

Cal.  304;  Monterey  v.  McKee,  51  Cal-  5  Cox  v.  Dawson,  2  Wash.  881. 

255.  6  Deering  v.  Warren,  1  S.  D.  35. 

1  Hurtgen  v.  Kantrowitz,  15  Colo.  '  Golden   Gate   Co.  v.   Jackson,  14 

442 ;  Colo.  Code  (1887),  ch.  6 ;  Woods  Abb.  New  Cases,  323. 

V.  Tanquary  (Colo.),  34  P.  737.     In  8  Schilling  v.   Deane,  36   III.  App. 

Nebraska  attachment  on  a  debt  not  513;    Butler  Paper    Co.  v.   Printing 

due  is  confined  to  particular  cases  Co.,  35  111.  App.  152.     Compare  Ellis 

named  in  section   237  of  the  code.  v.  Harris,  104  Mo.  270 ;  Rev.  Stat  of 

Caulfield  v.  Bittenger  (Neb.),  56  N.  W.  Mo.  (1889),  §  522 ;  Hearne  v.  Keith,  63 

302.    See  Espenhain  v.  Mej'er,  74  Wis.  Mo.  84.   See  Read  v.  Ware,  2  La.  Ann. 

379 ;  Schunk  v.  Moline,  147  U.  S.  500.  498 ;  Cox  v.  Dawson,  2  Wash.  381. 


74  PETITION   AND    CAUSE    OF   ACTION.  [§§  99,   100. 

due  are  both  sued  upon,  attachment  may  be  sustained  as  to 
the  former  though  not  as  to  the  latter,  where  the  statute  re- 
quires that  the  debt  shall  be  due.^  It  was  held  by  the  circuit 
court  of  appeals  in  a  Kansas  case  that  a  claim  due  and  one 
not  due  might  be  sued  upon  together  and  aided  by  attach- 
ment.^ 

§  99.  Debt  —  Certain. —  The  debt  must  be  certain.  Attach- 
ment is  denied  when  suits  are  for  alleged  balances  of  un- 
settled accounts  and  the  like ;  when  they  are  contingent.'  And 
denied  of  course  when  the  demand  is  fictitious.* 

The  petition  would  be  dismissed  in  the  case  of  an  action  on 
a  debt  alleged  in  the  affidavit  to  be  due,  if  it  should  be  shown 
that  the  allegation  is  false ;  for  in  such  case  the  action  is  de- 
pendent upon  the  validity  of  the  attachment  for  its  own  ex- 
istence as  a  personal  suit.^  The  plaintiff  must  own  the  claim 
for  which  he  attaches  when  he  swears  to  the  affidavit  and 
obtains  the  writ.  The  subsequent  purchase  of  it  will  not 
avail  him;  it  will  not  enable  him  to  amend  his  affidavit;*^  for 
the  debt  must  be  due  to  him  when  he  sues. 

If  the  cause  of  action  set  forth  in  the  petition  is  not  one 
upon  which  attachment  is  authorized  by  statute,  any  attach- 
ment therein  will  be  dissolved  on  rule,  though  the  petition  or 
declaration  may  be  good  in  the  personal  suit.^ 

§  100.  Place  of  i)aijment. —  Debt  must  be  payable  in  Oregon 
to  admit  of  attachment  there.  The  contract  may  be  made 
out  of  the  state  but  must  be  payable  within  it.^     So  in  Cali- 

1  Ayres  v.  Husted,  15  Conn.  504.  5  Cox  v.  Reiuhardt,  41  Tex.  591. 

2  Bowden  v.  Burnhana,  59  Fed.  752  6  Farvvell  v.  Wright  (Neb.),  56  N.  W. 
(following  O'Connell  v.  Reed,  56  id.     984. 

531).  The  syllabus  adds:  "without  7 Adair  v.  Stone,  81  Ala.  113; 
regard  to  state  practice  in  respect  to  Drakeford  u.  Turk,  75  id.  339;  Rice 
such  joinder."  v.   Thornton,   69  id.   473 ;    Dryer  v. 


3  Morris  v.  Everly  (Colo.),  36  P.  150 
Wheeler  v.  Farmer,  38  Cal.  203 
Taylor  v.  Drane,  13  La.  Ann.  62 
Humphrey  v.  Matthews,  11  111.  471 


Abercrombie,  57  id.  497;  Brown  v. 
Coats,  56  id.  439.  But  see  First  N. 
Bank  v.  Ragan  (Ga.),  18  S.  E.  295 
(Ga.  Code,  §  3309),  for  a  case  in  which 


Young  V.  Lynch,  80  Kan.  205 ;  Tread-  want  of  jurisdiction  over  the  attach- 
way  V.  Ryan,  3  id.  437 ;  Ackroyd  v.  ment  rendered  the  general  judgment 
Ackroyd,  20  How.   Pr.  93;  Johnson  invalid. 

V.  Short,  2  La.   Ann.  277.     Compare  «  Trabent  v.  Rummell,  14  Oreg.  17. 

Goble  V.  Howard,  12  Ohio  St.  165.  See  Crawford  v.  Roberts,  8  Oreg.  326. 

^Batetnan  v.  Ramsey,  74  Tex.  122; 
Jbhnson  v.  Heidenheimer,  65  id.  263. 


§  101.]  EXCEPTIONAL   CATJSES    OF    ACTION.  75 

fornia.^  The  situs  of  a  debt  due  on  the  policy  of  a  foreign 
insurance  company  was  held  not  limited  to  the  domicile  of 
that  company  when  it  had  an  agency  in  another  state  which 
there  disbursed  its  funds  and  paid  its  losses.  When  such 
agency,  located  in  California,  did  business  in  the  state  of 
"Washington  through  a  local  agent  in  the  latter,  the  assured 
there  could  sue  the  company  in  California  and  reach  the  debt 
by  garnishment.^  A  non-resident  may  attach  on  a  cause  of 
action  arising  out  of  the  state.^  The  pendency  of  an  attach- 
ment suit  between  the  parties  in  another  state  cannot  be 
successfully  pleaded  on  that  state's  statute  against  a  suit  in 
]S'ew  York.*  But  if  the  property  there  proceeded  against  is 
in  the  custody  of  the  court  of  the  foreign  state  (as  it  must 
be,  to  give  jurisdiction),  it  could  not  be  in  the  New  York 
court  at  the  same  time.  The  res  must  be  within  the  jurisdic- 
tion.^ 

YII.  Exceptional  Causes  of  Action. 

§  101.  Tort. —  The  cases  are  numerous  in  which  courts  have 
held  that  attachment  could  not  be  maintained  for  torts,  of- 
fenses, ^?ias2-offeuses  and  the  like,  for  want  of  statute  au- 
thorization.^ 

1  Eck  V.  Hoflfman,  55  Cal.  501 ;  Dal-  Martin  (La.),  276 ;  Prewitt  v.  Car- 
ton V.  Sheltou,  3  Cal.  206 ;  Fuller  v.  michael,  2  La.  Ann.  943 ;  Greiner  v. 
Arnold,  93  Cal.  166.  See  Smith  v.  Prendergast,  3  id.  376;  Swager  v 
Milk  Co.,  70  Hun,  348.  Pierce,  3  id.  435 ;  Holmes  v.  Barclay, 

2Neufelder  v.  Insurance  Co.  (Wash.),  4  id.  63 ;  IMarshall  v.  White,  8  Porter, 

33  P.  870.  551 ;  Austin  v.  Grout,  2  Vt.  489 ;  Tar- 

3  Sheldon  v.  Blanvelt,  29  S.  C.  453-  bell  v.  Bradley,  27  id.  535;  Ferris  v. 

<  Douglass  V.    Insurance  Co.,    138  Ferris,  25  id.  100 ;  Park  v.  Trustees  of 

N.  Y.  209.  Williams,  14  id.  213 ;  Hutchinson  v. 

5  Id.  Lamb,  Brayton  (Vt.),  234 ;  Emerson 

6  Holcomb  V.  Winchester,  52  Ct.  v.  Paine,  9  Vt  271 ;  Bradley  v.  Cooper, 
447 ;  52  Am.  Rep.  608 ;  Piscataqua  6  id.  121 ;  Hill  v.  Whitney,  16  id.  461 ; 
Bank  v.  Turnley,  1  Miles,  312 ;  Ja-  Stanley  v.  Ogden,  2  Root  (Ct.),  259 ; 
coby  V.  Gogell,  5  Serg.  &  R.  450 ;  Maxwell  v.  McBrayer,  Phillips  (N.  C), 
Porter  v.  Hildebrand,  14  Pa.  St.  129 ;  527 ;  Minza  v.  ZoUicoffer,  1  Iredell 
Thompson  u.  Carper,  11  Humphreys,  (N.  C),  278;  Sargeant  v.  Helmbold, 
542 ;  Fellows  V.  Brown,  38  Miss.  541 ;  Harper  (S.  C),  219;  Warwick  v. 
McDonald  v.  Forsyth,  13  Mo.  549;  Chase.  23  Md.  154;  Gordon  u  Gaffey, 
Hynson  v.  Taylor,  3  Ark.  552;  11  Abb.  Pr,  1 ;  Shafifer  u  Mason,  18 
Baune  v.  Thomassin,  6  Martin  (La.),  id.  455;  Saddlesvene  v.  Arms,  32 
N.    S.    563;    Hanna    v.    Loring,   11  How.  Pr.  280;  Raver  v.  Webster,  3 


7G  PETITION    AND   CAUSE    OF   ACTION.  [§  102. 

When  a  statute  expressly  authorizes  attachment  for  injuries, 
except  for  libel,  slander,  assault  and  battery,  false  imprison- 
ment and  seduction,  it  may  be  inferred  that  attachment  will 
lie  for  any  tort  not  thus  excepted.  In  such  cases  the  petition 
must  av^er  a  certain  sum  due,  though  it  is  for  the  jury  to  as- 
sess the  damages.  There  is  really  no  debt  certain,  but  the 
certainty  of  the  allegation  suffices  for  all  the  purposes  of 
granting  the  writ,  fixing  the  amount  of  the  bond,  and  deter- 
mining how  much  property  may  be  lawfully  attached.  Even 
though  the  wrong  done  be  of  such  ctfaracter  as  to  render  the 
estimate  of  damage  difficult,  the  remed}^  is  accorded.  A  gas 
company  attached  for  damages  caused  by  the  defendant's 
wantonly  breaking  its  pipes  (extending  from  its  own  property 
under  the  streets  of  the  town),  and  by  the  escape  of  its  gas. 
The  statute  was  held  to  cover  such  a  case.^ 

§  102.  Where  attachment  for  tort  was  brought  under  a 
statute  authorizing  it,  the  plaintiff  was  not  allowed  to  waive 
that  cause  of  action  and  substitute  the  allegation  that  the 
claim  was  for  "money  had  and  received."-  Tort  may  be 
waived  by  the  institution  of  an  action  for  breach  of  contract, 
Avhen  the  plaintiff  has  his  option, —  the  facts  warranting  either 
action.^ 

An  action  ex  delicto  is  aided  by  attachment  only  where  the 
remedy  is  authorized  by  statute  in  such  case;  and  the  author- 
ization is  not  to  be  extended.  There  can  be  no  foreign  attach- 
ment in  such  suit  in  Pennsylvania*  by  virtue  of  any  general 
authorization  of  attachment  for  torts. 

Iowa,  502 ;  Handy  v.  Bronp;,  4  Neb.        3  Frink  v.  Potter,  17  111.  406 ;  Statt 

60 ;  Reed  v.  Beach,  2  Pinney  (Wis.),  v.   Evans,   85   111.   455 ;    Boornian  v. 

26;  Elliott  v.  Jackson,  3  Wis.  649;  Brown,  32  Q.  B.  511;  International 

Griswold  v.  Sharpe,  2  Cal.  17.     See  Bank  v.   Monteath,   39    N.   Y.    297; 

Pennsylvania    R.   R.   v.   Peoples,   31  Berly  v.  Taylor,  5  Hill  (N.  Y.).  577; 

Ohio    St.    542 ;    Church    v.   Phillips  Willet  v.  Willet  3  Watts,  277 ;  Bank 

(Mass.),  32  N.  E.  911.  of  N.  America  v.  McCall,  4  Binney, 

iCode  Civ.  Proc.  of  N.  C,  §  347;  374;    Hutton  v.  Wetherald,  5  Har- 

Newbern  Gaslight  Co.  v.  Construe-  rington,  38;  Sanders  v.  Hamilton,  3 

tion  Co.,  113  N.  C.  549.  Dana  (Ky.),  552;  Budd  v.  Hiler,  27 

2  Tabor  v.   Big  Pittsburg    Mining  N.  J.  L.  43. 
Co.,  14  Fed.  636.  ^Boyer  v.  Bullard,  102  Pa.  St  555. 


§  103.]  ATTACHMENTS    AIDED   BY    EQUITY.  "77 

YIII.  Attachments  Aided  by  Equity. 

§  103.  Attachment  is  a  remedy  at  law;  it  is  not  of  an  equi- 
table nature/  but  it  is  sometimes  aided  by  equit}^  When  a 
defendant's  wife  had  intervened  to  claim  the  property  attached, 
the  cause  was  transferred  to  equity;^  but  ordinarily  though 
questions  of  an  equitable  nature  arise,  the  case  may  be  tried 
at  law.^  Attachment  cannot  be  employed  in  Missouri  to  aid 
a  bill  in  equity  to  charge  a  wife's  separate  estate.* 

In  Iowa  there  may  be  attachment  of  a  copartner's  property, 
in  an  equity  suit,  for  a  balance  due  the  plaintiff  in  an  action 
for  closing  the  partnership  and  accounting.^  In  Michigan  there 
may  be  garnishment  process  when  equitable  relief  is  sought, 
such  as  reaching  the  proceeds  of  property  fraudulently  ac- 
quired by  the  garnishee  as  against  creditors.^  Attachment  in 
equity  is  authorized  by  the  Arkansas  code.''  In  Alabama  a 
court  of  equity  wiil  not  appoint  a  receiver  to  aid  attachment 
unless  special  facts  be  shown  to  make  it  necessary.^  There 
may  be  resort  to  equity  to  reach  goods  fraudulently  sold  and 
conveyed  by  an  insolvent  debtor  when  found  in  the  hands  of 
a  fraudulent  grantee.^     In  West  Virginia  the  accommodation 

1  Shiel  V.  Patrick,  59  Fed.  993 ;  App.  520  (overruling  Frank  v.  Seigel, 
Bachman  v.  Lewis,  27  Mo.  App.  81 ;  9  id.  467);  Gage  v.  Gates,  63  Mo.  417; 
Thorington  v.  Merrick,  101  N.  Y.  5;  Williams  v.  Railroad,  8  Mo.  App.  135. 
Ketclium  r.  Ketchum,  46  Barb.  43;  5  Hansen  v.  Morris  (Iowa),  54  N. 
Ebner  v.  Bradford,  3  Abb.  Pr.  (N.  S.)  W.  233. 

248 ;  Williams  V.  Freeman,  13  Civ.  «  Treusch  v.  Ottenburg,  54  Fed.  867 ; 

Proc.  R.  335 ;  N.  Y.  Code  Civ.  Proc,  Heineman  v.  Schloss,  83  Mich.  157. 

§  635 ;    Hassie  v.    Congregation,  35  ^  American  Land  Co.  v.  Grady,  33 

Cal.  385 ;  Redondo  v.  Brewer  (Cal.),  Ark.  550. 

35  P.  896 ;  Steadham  u  Parrish,  93  «  pierce  v.  Jennings,  94  Ala.  534. 

Ala.  465 ;  Henderson  v.  Alabama  Ins.  »  Dollins  v.  Lindsay,  89   Ala.  217. 

Co.,   73   id.  32 ;  Phillips  v.   Ash,   63  See  Ware  v.  Seasongood,  93  id.  153 ; 

id.  414,  distinguishing  McClellan  v.  Epping  v.  Aiken,  71  Ga.  600.   In  Ala- 

Lipscomb,    56    id.    255;    Janney    v.  bama,  though  attachments  are  dis- 

Buell,  55  id.  408.  solved  on  rule  by  defendant  against 

2  Lockett  V.  Rumbough,  40  Fed.  533.  the  plaintiff  (Adair  v.  Stone,  81  Ala. 

3  Holmes  Organ  Co.  v.  Petitt,  34  113),  junior  attacher's  remedy  to  set 
Mo.  App.  536 ;  State  v.  McBride,  81  the  senior's  attachment  aside  is  by 
Mo.  349;  St  Louis,  etc.  v.  Cronin,  14  bill  in  equity  to  extinguish  the  lien; 
Mo.  App.  586 ;  Dodd  v.  Levy,  10  Mo.  and  the  sheriff  is  a  proper  party  to 
131 ;  Egerman  v.  Krieckhaus,  7  Mo.  the  bill.  Cartwright  u  Bamberger, 
App.  445.  90  Ala.  405. 

*  Brumback  v.  Weinsteiu,  37   Mo. 


78  PETITION   AND   CAUSE    OF    ACTION.  [§  104 

maker  of  a  negotiable  note  may  sue  out  an  attachment  in 
equity  against  an  absconding  debtor,  though  he  has  not  paid 
the  note  for  which  he  is  bound  at  maturity.^  In  that  state, 
after  judgment  against  the  attached  property  of  a  non-resi- 
dent in  an  attachment  suit  in  equity,  the  debt  adjudged  is  not 
disputable  by  a  third  person,^ 

§  104.  In  Dollraan  v.  Moore'  it  is  said  that  a  non-resident 
debtor  cannot  complain  of  the  garnishment  of  a  municipal 
corporation  indebted  to  him,  when  the  creditor  proceeds  in 
chancer}'-  and  the  corporation  does  not  object  on  the  ground 
of  his  non-residency.  The  court  claimed  jurisdiction  by  virtue 
of  its  general  equity  powers.*  It  said:  "The  creditor  may 
proceed  in  equity,  without  getting  a  judgment  at  law,  if  his 
debtor  is  dead ;  and  there  can  be  no  insuperable  reason  against 
his  so  proceeding  if  his  debtor  is  alive.^  The  jurisdiction  of  a 
court  of  equity  to  afford  relief  to  one  not  having  reduced  his 
demand  to  judgment  against  a  non-resident  defendant  having 
property  in  the  state  has  been  affirmed  in  many  cases."  ^  The 
owner  must  have  notice  before  his  property  can  be  condemned 
either  at  law  or  in  equity. 

There  may  be  resort  to  equity  to  aid  attachment,  as  when 
sale  under  a  fraudulent  judgment  is  restrained  to  protect 
property  attached  while  the  case  against  it  is  pending.'^ 

1  Altmeyer  v.  Caulfield,  37  W.  Va.  Johns.  Ch.  619 ;  O'Brien  v.  Coulter, 
847.  2  Blackf.  431 ;  Steer  v.  Hoagland,  39 

2  Chapman  v.  Pittsburg,  etc.  R.  Co.,  111.  264 ;  Whitney  v.  Kimball,  4  lud. 
26  W.  Va.  324;  Lynch  v.  Andrews,  546;  Thorp  u.  Fetz's  Adm'r,  6  B.  Mon. 
25  id.  751;  Cable  ?;.  Ellis,  110  U.S.  16;  Everingham  v.  Vanderbilt,  12 
389.  In  Virginia  an  attachment  in  Hun,  75;  Off  utu.  King,  1  Mac  Arthur, 
equity  must  be  made  returnable  to  a  312. 

term  of  court  —  not  to  rule.     Va.  ^  Citing  Scott  v.  McMillen,  1  Litt. 

Code  of  1887,  §§  2964-5 ;  Grainberg  302 ;  Peay  v.  Morrison,  10  Gratt.  149 ; 

V.  Longerman   (Va.),   19  S.  E.   162;  Bank  u   Wetmore,  124  N.  Y.  241; 

Craig  V.  Williams  (Va.),  18  S.  E.  899.  Pope  u  Salomons,  36  Ga.  541 ;  Quarl 

3  70  Miss.  267.  v.  Abbett,  102  Ind.  233:  Pendleton  v. 
*  Citing  Farrar  v.  Haselden,  9  Rich.  Perkins,  49  Mo.  565.  Contra,  Zecherie 

Eq.  336 ;  Kinlock  v.  Meyer,  Speer  Eq,     v.  Bovvers,  1  Smedes  &  M.  584. 
427 ;  Bank  v.  Paine,  13  R.  I.  595.  7  People  v.  Van  Buren,  136  N.  Y. 

s  Citing    Thompson    v.   Brown,   4    252. 


CHAPTER  ly. 

THE  ATTACHMENT  AFFIDAVIT. 

L  The  Affiant §§  105-107 

II.  How  THE  Affidavit  is  Executed 108-110 

III.  Form  and  Essentials 111-114 

IV.  Stating  the  Debt 115-121 

V.  Laying  the  Grounds 122-126 

VL  Information  and  Belief 127-131 

VIL  Certainty 132-134 

VIII.  Alternation 135-137 

IX.  Amendments 138-152 

X.  As  Evidence 153-156 

XL  The  Affidavit  Jurisdictional 157-160 


I,  The  Affiant, 

§  105.  Plaintiff. —  The  affidavit  must  be  made  by  the  plaint- 
iff, or  his  agent,  attorney  or  factor.  If  the  statute  requires 
that  it  be  made  by  the  plaintiff  and  gives  no  express  authori- 
zation for  its  being  made  by  an  agent,  the  authority  is  yet 
implied,  at  least  under  certain  circumstances.  It  must  be 
presumed  that  the  framers  of  the  law  meant  that  a  corpora- 
tion may  make  the  oath  by  its  president  or  other  proper 
officer,  since  it  is  impossible  for  an  artificial  person  to  make 
an  affidavit  otherwise  than  through  some  representative.^ 
Where  the  statute  does  not  confine  the  making  of  the  oath 
to  the  plaintiff  himself,  any  duly  authorized  agent,  factor,  at- 
torney, or  an}'  credible  person  having  knowledge  of  the  facts, 
may  act  for  him;  and  credibility  is  presumed.^ 

The  affidavit  should  be  made  by  the  plaintiff  himself  when 
he  is  present ;  it  must,  in  all  cases,  be  made  by  one  interested 
in  and  responsible  for  the  attachment,  or  by  an  agent  em- 
powered to  represent  him;  and  the  legislator  is  doubtless  com- 

1  Moline,  etc.  Co.  v.  Curtis  (Neb.),  2  Ruhi  v,  Rogers,  29  W.  Va.  779 ; 
57  N.  W.  161;  Whipple  v.  Hill,  36  Delaplain  r.  Rogers,  id.  783 ;  Bean  v. 
Neb.  720.  •  Hatcher,  81  Va.  25. 


so  ATTACHMENT   AFFIDAVIT.  [§  lOG. 

petent  to  confine  the  making  of  it  to  the  plaintiflp  himself.^ 
It  is  not  usual  for  statutes  to  restrict  so  narrowly  except  in 
cases  where  the  plaintiff  is  personally  present.  Under  such 
restriction,  the  spirit  of  the  statute  would  allow  a  corpora- 
tion to  make  the  oath  by  its  president  or  other  authorized 
officer,  since  it  could  not  possibly  make  it  in  any  other  way;  ^ 
and  in  case  the  plaintiff  is  suing  for  the  use  of  a  third  person, 
it  would  seem  that  such  person  might  make  the  affidavit  as 
the  real  party-plaintiff.^  A  partnership  firm  cannot  swear  to 
an  affidavit.* 

§  106.  Agent. —  Affidavits  are  very  frequently  made  by 
agents,  who  swear  to  their  authority  as  well  as  to  the  requisite 
facts.  An  agent  need  not  file  his  power  of  attorney  with  his 
affidavit,'"*  thougb  he  ought  to  be  ready  to  exhibit  it  if  required 
by  the  officer  issuing  the  writ.  Under  ordinary  circumstances 
such  exhibit  is  not  required,  and  the  officer  is  not  authorized 
to  demand  it.  He  is  not  bound  to  issue  the  writ  upon  the  ap- 
plication of  a  mere  stranger  without  proof  that  the  applicant 
is  authorized  to  represent  the  plaintiff.  The  authority  should 
be  set  forth  in  the  affidavit.^  It  must  not  only  appear  therein 
that  the  affiant  is  the  agent  of  the  plaintiff,  but  that  he  is 
agent  for  the  purpose  of  making  the  oath ;  or  has  general  pow- 
ers including  authorization  to  do  so.  And  the  affiant  must 
swear  to  such  additional  circumstances  as  the  statute  under 
which  he  appears  may  require;  such  as  the  absence  of  his 
principal  or  the  inability  of  his  principal  to  appear  for  any 
cause.     His  authority  must  be  lawful ;  ^  and  if  there  are  more 

iStewart  V.Clark,  11  La.  Ann.  319;  v.  Conger,  17  Miss.  505;  Murray  v. 

Baker  u   Hunt,  1  Martin  (La,),   194 ;  Cone,  8  Porter,  250. 

Cohen  v.  Manco,  28  Ga.   27;  Pool  v.  ^  Gorman  v.  Horn,  30  Mo.  App.419. 

Webster,  3  Met.  (Ky )  278 ;  Mantz  v.  5  Simpson  v.  McCarthy,  78  Cal.  175 ; 

Henilley,  2  Hening  &  Munford,  308 ;  Rutledge  v.  Stribling,  26  111.  App.  353. 

Myers    v.  Lewis,    1    McMullen,    54;  ^  Miller  v.  Railroad,  58  Wis.  310; 

Jackson   v.   Shipman,   28  Ala.   488 ;  Wiley  v.  Aultman,  '53  id.  560 ;  Wil- 

Dolber  v.  Stout,  60   N.   Y.   Superior  lis  v.  Lyman,  22  Tex.  268 ;  Wetmore 

Ct.  269 ;  Nicolls  v.  Lawrence,  30  Mich.  v.  Baffin,  5  La.  Ann.  496 ;  Lithgow  v. 

395.  Byrne,  17  id.  8 ;  Pool  v.  Webster,  3 

2  Faver  v.  Bank  of  Alabama,  10  Met.  (Ky.)  278 ;  Anderson  v.  Sutton, 
Ala.  616 ;  Trenton  Banking  Co.  v.  2  Duv.  (Ky.)  480.  Compare  Robinson 
Haverstick,  6  Halstead,  171.  v.  Hesser,  4  N.  M.  144. 

3  Grand  Gulf  R.  R.  &  Banking  Co.  '  Borland  v.  Kingsbury,  65   Mich. 

59;  Johnson  v.  Johnson,  31  Fed.  700. 


§  107.]  '  AFFIANT.  81 

than  one  plaintiff  represented  by  him,  he  must  show  that  he 
is  entitled  to  appear  for  them.^  Though  the  affidavit  should 
show  that  it  is  made  by  the  plaintiff  or  for  him,-  yet  that  fact 
may  appear  elsewhere  in  the  pleadings,^  Omission  of  it  may 
be  cured  by  amendment.*  It  is  held  that  an  agent  need  not 
swear  to  his  agency,  if  the  affidavit  purports  to  be  made  by 
an  agent.^ 

The  president  of  a  bank  signed  an  affidavit,  adding  "  Pres." 
It  was  held  sufficient  because  the  bank  was  the  plaintiff,  and 
the  body  of  the  affidavit  showed  that  the  signer  Avas  president 
of  the  corporation.^  The  affidavit  may  be  made  by  a  bank 
officer  other  than  the  president,  if  the  corporation  has  author- 
ized him  to  represent  it.  When  made  by  an  assistant  cashier 
it  was  sustained.'' 

The  agent  of  a  foreign  corporation  may  make  the  affidavit 
when  directed  to  do  so  by  its  general  manager  in  the  state ; 
and,  if  the  attachment  prove  to  be  wrongful,  the  corporation 
will  be  liable  therefor.* 

§  107.  Attorney  at  laiv. —  If  the  affiant  is  an  attorney  at  law, 
already  of  record  for  the  plaintiff,  having  signed  and  filed  the 
petition  in  the  case,  it  is  not  absolutely  essential  that  he  should 
swear  to  his  authority  to  represent  his  client  when  making 
the  affidavit  in  the  latter's  behalf.  If  the  statute  allows  affi- 
davits to  be  .made  by  attorneys,  those  at  law  are  included  as 
Avell  as  attorneys  in  fact,  and  the  court  may  presume  their 
authority  when  they  appear.^  But  as  a  lawyer  may  be  em- 
ployed to  conduct  a  cause,  yet  not  to  resort  to  the  extraor- 
dinary remedy  of  attachment,  it  is  better  that  he  should 

1  Burnside  v.  Davis,  65  Mich.  74.         23  S.  W.  1101 ;  Willis  v.  Lyman,  22 

2  Miller  V.  Chicago,  etc.  R.  Co.,  58  Tex.  268 ;  Evans  v.  Lawson,  64  id. 
Wis.  310 ;  Mackey  v.  Hyatt,  42   Mo.     199. 

App.  443,  447.  *  Park  Bank  v.  Whitmore,  40  Hun, 

3  Gilkerson  v.  Knight,  71  Mo.  404 :     499. 

Johnson  v.  Gilkerson,  81  id.  55 ;  Irwin  ^  Emerson   v.  Skidmore  (Tex.  Civ. 

V.  Evans,  92  id.  472.  App.),  25  S.  W.  671. 

*  Mackey  v.  Hyatt,  supra;  Claflin  ^  Gilkerson  i\  Knight,  71  Mo.  403 ; 

V.  Hoover,  20  Mo.  App.  314.  Austin  v.  Latham,  19  La.  88 ;  Clark 

5  Evans   V.  Lawson,  64  Tex.  199 ;  v.  Morse,  16  id.  575 :  Hardie  r.  Colvin, 

Stringer  v.  Dean,  61  Mich.  196 ;  Fre-  44  La.  Ann.  851 ;  James  v.  Richard- 

mont,  etc.  Co.  v.  Fulton,  103  Ind.  393.  son,   39  Hun,   399 ;    Wetherwax    v. 

^  First  N.  Bank  v,  Graham  (Tex.),  Paine,  2  Mich.  555. 
6 


82  ATTACHMENT    AFFIDAVIT.  [§  108. 

disclose  his  authority  to  make  the  affidavit  in  the  instrument 
itself,  and  declare  under  oath  why  his  client  does  not  make  it 
himself.  The  attorney's  authority,  as  a  general  rule,  is  con- 
fined to  his  duties  as  attorney.^  If  an  attorney  sues  out  an 
attachment  without  the  knowledge  of  his  client,  Avho  does  not 
subsequently  ratif}^  the  act  in  any  way,  he  does  not  thus  ren- 
der the  client  liable  to  damages  in  case  the  attachment  was 
wrongful.^ 

An  attorney  should  show  why  his  principal  does  not  act.^ 
There  is  no  presumption  in  his  favor  when  he  makes  the  affi- 
davit for  the  attaching  creditor  who  is  not  his  client ;  when 
he  merely  acts  in  the  place  of  the  attorney  of  record.* 

II.  How  THE  Affidavit  is  Executed. 

§  108.  Signature. — The  affiant  should  sign  the  affidavit,  but 
his  omission  to  do  so  would  not  necessarily  be  fatal  to  it.*  The 
essential  matter  is  that  he  should  make  the  showing  under 
oath  —  not  that  he  attest  it  by  his  signature.     That  he  made 

1  Alexander  v.  Deuaveaux,  53  Cal.  Where  the  omission  of  signature  is 
664;  and  same  parties,  59  id.  476.  incurable  by  amendment,  it  is  fatal. 
See  generally,  with  respect  to  attor-  Third  Nat.  Bank  v.  Gaston,  40  Mo. 
neys'  authority  to  appear  for  their  App.  113;  Carlisle  v.  Gunn.  (Miss.), 
clients  after  becoming  of  record,  8  So.  743;  Loeb  v.  Smith,  78  Ga.  500. 
Steuben  Co.  Bank  v.  Alberger,  75  N.  In  Missouri  an  attachment  was 
Y.  179 ;  Ruppert  v.  Haug,  87  id.  141 ;  quashed  because  the  affidavit  was 
Jacobs  V.  Hogan,  85  id.  243 ;  Trow  signed  by  the  plaintiff's  firm  name. 
Printing  Co.  v.  Hart,  id.  500 ;  Burton  Norman  v.  Horn,  36  Mo.  App.  419. 
V.  Wynne,  55  Ga.  615.  But  otherwise  in  some  other  states. 

2  Oberne  v.  O'Donnell,  35  111.  App.  Forteuheim  v.  Claflin,  supra;  Agri- 
180.  cultural  Ass'n  v.  Madison,  9  Lea,  407. 

3  Westcott  V.  Sharp,  50  N.  J.  L.  393.  In  Georgia  it  is  held  unnecessary  co 
*  Johnson  i).  Johnson,  31  Fed.  700.  name  the  members  of  a  plaintiff  firm 
5  West  Tennessee  Agricultural  As-     in  an  affidavit.     Gazen  v.  Royce,  78 

sociation   ii.   Madison,    9    Lea,    407;  Ga.    513.     Certainly  the    defendant 

Bates  V.  Robinson,  8  Iowa,  318 ;  Hits-  cannot  complain  of  the  omission  of 

man  i'.    Garrard,  16   N.  J.'  L.  134;  the  partners' names  after  he  has  ap- 

Redus  V.  Wofford,   4  Smedes  &  M.  peared   and  replevied  the  attached 

579.     Omission    to  sign   held    fatal,  property.     De  Leon  v.  Heller,  77  Ga. 

Watt  V.  Carnes,  4  Heisk.  533 ;  Har-  740,  distinguisJiing  Barbour  v.  Lodge, 

gadiue  v.    Van  Horn,   73    Mo.   370 ;  73  Ga.  474.    See  Hines  v.  Kimball,  47 

Cohen    v.    Manco,  38  Ga.   27 ;   For-  Ga.  587. 
tenheim     v.    Claflin,    47    Ark.     49. 


§§   109,  110.]  HOW    EXECUTED.  83 

it  must  appear  b}^  the  jurat/  even  though  the  signature  should 
have  been  inadvertently  omitted.- 

The  signature  of  the  officer  to  the  jurat  is  not  absolutel}'' 
indispensable,  since  the  fact  that  the  oath  was  administered 
may  be  established  by  other  means,  and  that  is  the  essential 
fact.'     Such  omission  may  be  remedied  by  amendment.^ 

If  absence  of  signature  to  the  jurat  ma}^  be  remedied  with- 
out fatalitj,  it  will  be  readily  seen  that  the  omission  of  the 
official  designation  to  the  name,  or  of  a  part  of  such  designa- 
tion, is  not  more  serious.^  If  the  jurat  is  unsigned  and  it  is 
not  shown  that  the  oath  was  administered,  the  affidavit  is 
void.'' 

§  109.  How  sworn. — The  affidavit  may  be  sworn  before  any 
officer  authorized  to  administer  oaths.^  Deputy  clerks  not 
only  administer  oaths,  but  it  is  now  common  for  them  to  issue 
the  writs  as  well.^  The  plaintiff's  lawyer  should  not  admin- 
ister the  oath  in  his  capacity  as  notary  —  the  affidavit  would 
be  voidable."  If  the  plaintiff  is  an  officer,  he  cannot  make  oath 
for  attachment  before  one  of  his  deputies.^" 

§  110.  Filing. —  An  important  thing  —  an  absolutely  essen- 
tial thing — concerning  the  affidavit  is  that  it  must  be  filed  and 
made  part  of  the  record  in  the  attachment  suit.^^  It  is  the 
preliminary  step  to  the  lien,  and  it  should  be  so  marked  or 
indorsed  by  the  clerk  that  it  may  be  identified  with  the  pro- 

1  Cosner  v.  Smith,  36  W.  Va.  788 ;  ton  v.  Woflford,  4  id.  576 ;  Simon  v. 
Birdsong  v.  McLaren,  8  Ga.  521.  Stetter,  25  Kan.  155. 

2  See  Fortenheim  v.  Claflin,  47  Ark.  *>  Tacoma  Co.  v.  Draham  (Wash.), 
49 ;  Agricultural  Ass'n  v.  Madison,  9  36  P.  31.  Compare  Stout  v.  Folger,  34 
Lea,  407;  Third  Nat.  Banku  Garton,  Iowa,  71 ;  Wiley  v.  Bennett,  9  Bax. 
40  Mo.  App.  113.  581. 

3Kruse  u  Wilson,  79  111.233;  En-  'Wright  v.    Smith,   66    Ala.    545; 

glish    V.    Wall,    12   Rob.   (La.)   132 ;  Johnson  v.  Hannah,  id.  127 ;  Irving 

Simon  v.  Stetter,  25  Kan.  155;  Farm-  v.  Edrington,  41  La.  Ann.  671. 

ers'  Bank  v.  Gettinger,  4  W.  Va.  305 ;  8  Minniece  v.  Jeter,   65  Ala.   222 : 

Cook    V.    Jenkins,    80    Iowa,    452 ;  Dorr  v.  Clark,  7  Mich.  310. 

White  V.  Casey,  25  Tex.  552 ;  Kahn  ^  Swearingen  v.  Howser,  37  Kan, 

V.  Kuhn,  44  Ark.  410 ;  Stout  v.  Folger,  126 ;  Yoakam  v.  Howser,  id.  130. 

34  Iowa,  71 ;  Bergesh  v.  Keevil,  19  lo  Owens  r.  Johns,  59  Mo.  89, 

Mo.  129;  Hyde  17.  Adams,  80  Ala.  Ill;  u  Ketchen   v.  Landecker,  32  S.  C. 

Hart  V.  Jones  (Pa.  Com.  P.),  6  Kulp,  155.     See  State  t'.  Court  of  Mason  Co, 

326;  Farrow  v.  Hayes,  51  Md.  498.  (Wash.  St.),  34  P.  151 ;  State  v.  Court 

*  Wiley  V.  Bennett,  9  Bax.  581.  of  Pierce  Co.,  5  Wash.  639. 

5  Dyer  v.  Flint,  21  111.  80 ;  Single- 


84  ATTACHMENT    AFFIDAVIT.  [§  111. 

ceedings  to  follow.  The  filing  should  take  place  without 
delay,  that  the  plaintiff  may  have  the  benefit  of  his  earlier 
action  in  case  of  competing  creditors  coming  after  him  to  ob- 
tain attachments. 

"Whether  the  affidavit  should  be  filed  on  the  day  of  the  issu- 
ance of  the  writ,  or  may  be  filed  before  without  affecting  the 
validity  of  the  proceeding  thereon,  depends  upon  statute  pro- 
visions. If  the  oath  required  with  respect  to  non-residence  is 
that  the  defendant  has  been  absent  for  three  months  immedi- 
ately preceding  the  making  of  the  affidavit  or  the  making  of 
the  application  for  attachment,  the  affidavit  should  be  filed  on 
the  day  the  writ  is  issued;^  but  the  practice  is  pretty  general 
to  allow  the  time  to  go  unquestioned,  if  within  a  day  or  two 
before  the  issuing  of  the  writ,  where  the  reason  above  stated 
is  inapplicable.^  If  both  bear  the  same  date,  the  presumption 
is  that  the  affidavit  was  filed  before  the  writ  was  issued.' 

AVhen  the  petition  or  declaration  is  referred  to  in  the  affi- 
davit for  essential  facts,  it  ought  to  be  attached  to  and  made 
part  of  the  affidavit,  so  that  the  oath  of  the  affiant  may  in- 
clude such  facts.*  A  defective  declaration  may  be  aided  by 
the  attachment  papers.^ 

III.  FoEM  AND  Essentials. 

§  111.  Contents. —  The  state  of  things  at  the  time  the  affi- 
davit is  made;  the  indebtedness  and  the  grounds  for  attach- 
ment then  existing,  must  be  sworn  to;  and  the  oath  should  be 
made  at  the  time  of  the  application  for  the  writ."  The  affida- 
vit is  made  with  reference  to  property  then  belonging  to  the 
defendant,  and  then  liable  to  execution  as  his.     It  is  with  ref- 

1  In  exposition  of  the  Michigan  Superior  Ct.  483.  In  this  case  the 
statute :  Drew  v.  Dequindre,  2  Doug,  affidavit  was  sustained,  though  the 
93 ;  Wilson  u  Arnold,  5  Mich.  98 ;  annexed  copy  of  the  complaint  was 
Fessenden  v.   Hill,   6  id.  243 ;  Dorr  not  expressly  made  a  part  of  it. 

V.  Clark,  7  id.  310.  *  Muuzenheiraer  v.  Manhattan,  etc., 

2  Wright  V.  Raglaud,  18  Tex.  289 ;  79  Tex.  318 ;  Kolb  v.  Cheney,  63  Ga. 
Creagh  v.  Delane,  1  Nott  &  McCord,  688;  King  v.  Thompson,  59  id.  389. 
189 ;  Wirker  u  Scofield,  59  Ga.  210.  « Wilson    v.   Arnold,   5  Mich.   98 ; 

3  Webster  v.  Daniel,  47  Ark.  131 ;  Fessenden  v.  Hill,  6  id.  242 ;  Dorr  v. 
Hubbardston,  etc.  Co.  v.  Covert,  35  Clark,  7  id.  310 ;  Hubbardston  Lum- 
Mich.  254.  ber  Co.  v.  Covert,  35  id.  254. 

4Crandall    v.   McKaye,   13   N.  Y. 


§  112.]  FOKM    AND   ESSENTIALS.  85 

Irenes  lo  no  particular  property,  but  to  any  such  property. 
Herein  is  a  marked  difference  between  attachment  proceed- 
ings, and  proceedings  instituted  against  property  already  in 
court  under  seizure  for  the  adjudication  of  its  status  as  for- 
feited. In  the  latter  case  the  action  is  against  a  specific 
thing;  and,  though  its  owner  may  possess  other  property,  that 
is  not  affected  by  the  suit  or  the  judgment  to  follow,  and 
cannot  be  executed  under  such  judgment. 

The  attachment  affidavit  (except  under  a  statute  authoriz- 
ing the  attachment  of  propert;/,  sold  and  delivered,  to  recover 
the  purchase-mone}^  and  other  exceptional  authorizations) 
need  not  contain  any  description  whatever  of  the  property  to 
be  attached. 

It  ought  to  show  that  resort  to  the  extraordinary  process 
of  attachment  is  necessary,  where  the  remedy  is  confined  to 
cases  in  which  the  ordinary  would  not  be  likely  to  prove 
available.^  It  need  not  show  that  action  has  been  commenced 
or  that  summons  has  been  issued,^  unless  such  showing  is  ex- 
pressly required  by  statute.     It  need  not  aver  jurisdiction.' 

§  112.  Statute. —  To  establish  the  necessity  for  the  extraor- 
dinary relief  he  claims,  the  creditor  must  follow  the  statute 
when  making  his  oath.  As  the  affidavit  is  necessary  to  juris- 
diction in  attachment  cases,  it  must  substantially  conform  to 
the  statute.*  If  that  requires  that  the  debt  must  be  due,  he 
must  swear  that  it  is  due;  if  that  requires  that  it  must  be  due 
on  contract,  he  must  swear  that  it  is  due  upon  contract ;  if 
that  specifies  several  grounds  upon  any  of  which  the  remedy 
may  be  awarded,  the  affiant  must  swear  to  the  existence  of 
one  or  more  of  the  grounds  in  language  substantially  embody- 
ing the  meaning  of  the  statute.     The  07ius  is  on  him.     The 

1  lu  California  it  should  show  that  Mex.  7 ;  Jackson  v.  Shepard,  7  Cow. 
payment  has  not  been  secured  bj'  any  88 ;  Sherwood  v.  Reade,  7  Hill  (N.  Y.), 
lien  or  mortgage.  Wilke  v.  Cohn,  54  434;  Rumbough  v.  White,  11  Heisk. 
Cal.  212 ;  Merced  Bank  v.  Morton,  58  260 ;  Stewart  v.  Mitchell,  10  id.  488. 
id.  360.  There  should  be  an  averment  of  de- 

2  Pickhardt  v.  Antony,  27  Hun,  269.  niand  when  a  landlord  makes  affi- 

3  Branch  v.  Frank,  81  N.  C.  180.  davit  in  a  suit  for  advances  under 
*  Parker  i'.  Overman,  18  How.  (XJ.  S.)    the  Alabama  statute.     Cockburn  v. 

137;  Kelso  v.  Blackburn,  3  Leigh,  Watkins,  76  Ala.  4»6;  Bell  r.  Allen, 
299;  Crim  v.  Harmon  (W.  Va.),  18  id.  450;  Jaffray  v.  Jennings  (Mich.;;, 
S.  E.  753 ;  Bennett  v.  Zabriski,  2  New    60  N.  W.  52. 


86  ATTACHMENT    AFFIDAVIT.  [§§  113,  114, 

presumption  is  against  the  necessity  of  resorting  to  the  harsh 
process.  His  right  to  move  comes  solely  from  the  statute,  and 
he  must  follow  it. 

The  sworn  statement  of  the  facts  which  the  law  requires  is 
the  basis  for  the  issuance  of  the  writ.  The  creditor  who 
would  have  the  debtor's  property  attached  must  lay  the 
foundation  for  the  extraordinary  proceeding  which  he  prays 
for,  by  an  affidavit  in  substantial  compliance  with  the  statute 
upon  which  he  relies  as  his  warrant  for  the  suit,  and  following 
the  statute  form,  if  any  is  prescribed.^ 

§  113.  In  some  states,  before  realty  can  be  attached,  the 
plaintiff  must  make  affidavit  that  the  defendant  has  no  per- 
sonal property  subject  to  execution  within  the  jurisdiction. 
When  the  sheriff's  return  shows  that  no  personalty  has  been 
found,  such  affidavit  is  unnecessary .^  In  Indiana  there  must 
be  an  affidavit  that  the  defendant  has  property  subject  to 
execution.^  In  Minnesota  and  some  other  states  the  plaintiff 
need  not  aver,  in  his  affidavit,  that  the  non-resident  debtor 
has  property  in  the  state  subject  to  attachment.*  The  exist- 
ence of  property  of  the  defendant  within  the  jurisdiction  need 
not  be  alleged  when  not  expressly  required  by  the  statute.* 
The  affidavit  is  always  against  a  person,  natural  or  artificial ; 
never  against  property  or  an  estate.*^  One  affidavit  may  be 
sufficient  for  several  orders  of  attachment.'' 

§  114.  There  is  nothing  sacramental  in  the  form  of  the  affi- 
davit.    Like  all  papers  of  that  character  it  should  be  clear, 

1  Lankin  v.  Douglass,  37  Hun,  517 ;  299,  323 ;  Delaplain  v.  Armstrong,  21 

Edick  V.  Green,  38  id.  202;   Skiff  v  id.  211,  213;  Capehart  v.  Dowery,  10 

Stewart,  39  How.  Pr.  385 ;  Furman  id.  130-5 ;  Gutman  v.  Iron  Co.,  5  id. 

V.   Walter,    13  How.    349 ;   Miller  v.  22 ;  Tessier  v.  Englehart,  18  Neb.  187 ; 

Brinkerhoff,  4  Denio,  118 ;  Staples  v.  Inman  v.  Allport,  65  111.  540. 
Fairchild,   8  N.  Y.    41 ;  Richards  v.        2  Webster  v.  Daniel,  47  Ark.  131. 
Donaughey,  13  Fhila.  514;  Shockley        3  Blair  v.  Smith,  114  Ind.  114 
V.   Bulloch,    18  Ga.   283 ;    Barrill  v.        *  Kenuey  v.  Georgen,  36  Minn.  190 ; 

Humphreys,  26  id.  514 ;  McCollem  V.  Parks    v.    Adams,    113   N.    C.    473; 

White,  23  Ind.  43 ;  Moody  v.  Levy,  Branch  v.  Frank,  81  id.  180,  overrul- 

58  Tex.  532;  Reyburn  v.  Brackett,  2  ing  Windley  v.  Brad  way,  77  id.  333. 
Kan.  227 ;  Matthews  v.  Dare,  20  Md.        ^  Grebe  v.  Jones,  15  Neb.  312. 
248 ;  Emmitt  v.  Yeigh,   12  Ohio  St.        ^  MuUer  v.  Leeds,  52  N.  J.  366. 
335;  Hilton  v.  Ross,  9  Neb.  406;  Alt-        'Thompson  v.  Stetson,  15  Neb.  112. 
nieyer   v.  Caultield,  37  W.  Va.  847; 
Chapman  v.  Railway  Co.,  26  W.  Va. 


§§  115,  116.]  STATING   THE    DEBT.  87 

succinct,  certain,  respectful,  and  as  brief  as  is  consistent  with  a 
full  disclosure  of  the  matter  to  be  expressed.  It  should  show, 
beyond  all  ambiguity,  in  what  suit  or  intended  suit  it  is  made; 
should  make  perfectly  clear  all  necessary  facts  and  the  names 
of  the  parties.^ 

IV.  Stating  the  Debt. 

§115.  Tlie  statement  necessary. —  The  attaching  creditor 
must  swear  to  the  character  of  his  claim  to  show  whether  its 
collection  may  be  aided  by  attachment.  Though  the  cause  of 
action  is  fully  set  forth  inliis  complaint,  there  must  be  a  state- 
ment of  it  in  the  affidavit,  however  brief,  which  will  bring 
it  within  the  statute  authorizing  the  remedy.  Such  state- 
ment of  the  debt,  or  other  authorized  cause  of  action,  must 
be  certain  as  to  the  particulars  required  by  the  statute.^  If 
more  than  one  cause  is  stated,  there  must  be  consistency  be- 
tween them,  since  contradictory  ones  vitiate  the  attachment.^ 
The  essential  matter  is  that  the  court  may  be  enabled  to  grant 
the  attachment  upon  the  affidavit.  If  the  statement  is  suffi- 
cient for  this,  minor  inconsistencies  are  not  fatal.*  The  par- 
ticularity of  a  complaint  or  declaration  is  not  required.^  The 
affidavit  must  be  equally  correct,  but  need  not  have  the  cir- 
cumstantial details  of  a  petition  or  complaint.  If  part  of  the 
debt  has  accrued  directly  and  part  by  assignment,  the  facts 
should  be  stated ;  ^  but  there  is  no  need  of  amplifying  them 
to  the  extent  that  might  be  thought  necessary  in  a  petition.'^ 

§  116.  Stating  the  sum. —  There  can  be  no  writ  issued  if  the 
character  of  the  debt  sued  upon  is  not  shown  in  the  sworn 

1  Prins  V.  Hinchliff,  17  111.  App.  153.        3  Meyer  v.    Evans,    27  Neb.    367 ; 

2  Central  R  Co.  v.  Georgia,  etc.  Co.,     Meyer  v.  Zingre,  18  id.  458. 

33  S.  C.  319;  Buell  u  Van  Camp,  119  4  Crawford  v.  Roberts,  8  Or.  324; 

N  Y.  160;  Wanzell  v.  Morrisey,  115  O'Brien  v.   Daniel,    2  Blackf.    290; 

id    665;     Bennett    v.    Edwards,    27  Fleming  v.  Burge,  6  Ala.  373 ;  Starke 

Hun,  242;  Johnston  r.  Ferris,  14  Dal}-,  v.    Marshall,    3   id.   44;    Bartlett    v. 

302 ;  Hart  v.   Barnes,   24  Neb.  782 ;  Ware,  74  Me.  272 ;  Irvin  v.  Howard, 

Sword  V.  Circuit  Judge,  71  Mich.  284 ;  37  Ga.  18 ;  Wilkins  v.  Tourtellott,  28 

Geiger  v.  Greiner,  68  id.  153 ;  Simp-  Kan.  825. 

son  V.  McCarthy,  78  Cal.  175;  Baum-  5  Powers  v.  London  Bank,  3  Utah, 

garduer  v.  Dowagiac  Manuf.  Co.,  50  417. 

Minn.  381 ;  Central,  etc.  Co.  v.  Con-  6  Ackroyd  v.  Ackroyd,  20  How.  Pr. 

striiction  Co.,  32  S.  C.  319,  and  33  id.  93. 

599.    See  Landfair  v.  Lowman,    50  '^gg  94-100. 

Ark.  446. 


88  ATTACHMENT   AFFIDAVIT.  [§  116. 

statement,  and  shown  to  be  such  as  the  statute  contemplates.^ 
The  indebtedness  must  be  stated  positively  —  not  doubtfully, 
whether  the  affidavit  be  made  by  the  plaintiff  or  by  an  agent.^ 

A  statute  required  an  affidavit  to  the  amount  which  the  affi- 
ant believed  the  plaintiff  "  justly  entitled  to  recover."  It  was 
held  that  "justly"  could  not  be  omitted  without  fatality,  un- 
less some  equivalent  word  was  substituted.* 

When  the  statute  merely  requires  that  the  nature  of  the 
claim  be  stated,  the  plaintiff  need  not  set  forth  the  items  of 
his  account  or  demand.*  But,  under  such  requirement,  he 
should  state  whether  the  debt  claimed  is  by  note,  bill  or  other 
instrument.^  When  an  account  is  annexed  to  the  affidavit, 
under  statute  requirement,  dates  and  accounts  of  different 
loans  constituting  the  amount  should  be  given,  if  the  claim  is 
of  such  character.^  When  the  amount  and  the  character  of 
the  debt  is  properly  stated,  it  is  not  generally  requisite  to  par- 
ticularize all  the  facts  and  circumstances  out  of  which  the  in- 
debtedness arose,^  though  they  must  be  stated  with  such  par- 
ticularity as  to  show  whether  they  are  the  proper  subject  of 
an  attachment  suit.^  It  is  the  state  of  facts  existing  when  the 
oath  is  taken  —  not  when  the  writ  is  issued — which  forms 
the  basis  of  the  proceeding;  but  if  not  true  at  the  time  of  the 
issue,  the  attachment  would  not  be  sustained,^ 

1  In  re  Hollingshead,  6  Wend.  553 ;  6  Cox  v.  Waters,  34  Md.  460 ;  Sum- 
Sullivan  V.  Fugate,  1  Heisk.  20;  mers  v.  Oberndorff,  73  id.  312. 
Smith  V.  Luce,  14  Wend.  237;  Smith  "Weaver  v.  Hay  ward,  41  Cal.  117; 
V.  Davis,  29  Hun,  301,  306 ;  Yale  v.  Ellison  v.  Tallon,  2  Neb.  14.  But  in 
McDauiel  (Miss.),  12  So.  556;  Cox  v.  Tennessee  the  fact  that  steamboat 
-Waters,  34  Md.  460 ;  Marshall  v.  materials  were  furnished  within  that 
Alley,  25  Tex.  342 ;  Yarneli  v.  Hadda-  state  must  be  alleged  in  the  petition, 
way,  4  Harrington  (Del),  437  [see  in  order  to  sustain  an  attachment  to 
Wright  V.  Hobson,  id.  382) ;  Rouss  v.  recover  a  debt  for  the  materials. 
Wright,  14  Neb.  457.  Emory  Iron  and  Coal  Co.  v.  Wood, 

2  Bailey  v.   Beadles,  7   Bush,  383 ;  6  Heisk.  198. 

Taylor  u    Smith,    17   B.    Mou.    536;  SRichter    v.    Wise,    3    Hun,    398; 

Hamilton  v.  Penny.  36  N.  Y.  Supreme  Ruthe  v.  Green  Bay  &  Minn.  R.  R. 

Ct.  265 ;  29  Hun,  265.  Co.,  37  Wis.  344 ;  Kiefer  v.  Webster, 

3  Reed  v.  McCloud,  38  W.  Va.  701 ;  6  Hun,  526 ;  Lyon  v.  Blakesley,  19 
W.  ^a.  Code,  ch.  106,  ^  1.  id.  299.     In  Oregon  the  ultimate,  not 

<  Tlieirman  v.  Vahle,  32  Ind.  400 ;  the  probative,  facts  are  required. 
Roelofson  v.  Hatch,  3  Mich.  277.  Crawford  v.  Roberts,  8  Oreg.  324. 

5  Sullivan   v.   Fugate,  1  Heisk.  20;        9  Lewis  v.  Stewart,  62  Tex.  353. 
Pope  V.  Hibernia  Ins.  Co.,  24  Ohio  St. 
481. 


§  117.]  STATING    THE    DEBT.  89 

In  a  suit  upon  a  note  the  plaintiff  need  not  state  that  he.  is 
the  owner  of  the  note  if  he  has  stated  that  the  defendant  is  in- 
debted to  )iim  on  a  promissory  note  specified.^  The  essential 
averment  is  the  indebtedness  —  the  cause  of  action.- 

§  117.  Debt  on  contract. —  In  stating  that  the  debt  is  upon 
contract  it  will  not  suffice  to  narrate  facts  from  which  a  con- 
tract may  be  inferred ;  there  must  be  oath  to  the  existence  of 
it,  and  its  nature  and  the  amount  owing  upon  it.'  However, 
if  narrated  facts  be  of  such  character  that  a  contract  may  be 
inferred  to  the  exclusion  of  any  other  inference,  they  may  be 
equivalent  to  a  direct  averment,  and  the  court  may  consider 
the  statement  substantially  within  the  statute.*  When  the 
plaintiff  swore  that  the  debt  due  him  was  upon  an  "express 
a?id  implied  contract,"  the  inconsistency  was  not  held  fatal.^ 

If  the  suit  is  for  a  debt  upon  contract,  the  affidavit  should 
show  when  the  debt  will  mature,  if  it  is  not  due.^  If  the  suit 
is  upon  a  note  which  is  attached  to  the  petition,  so  that  the 
date  of  maturity  appears  from  it,  there  will  not  be  fatal  error 
in  omitting  to  aver  w^hen  the  note  will  become  due;'^  and  the 
attachment  of  the  note  to  an  affidavit,  so  as  to  be  a  part  of  it, 
may  relieve  from  the  effect  of  an  omission  to  state  when  the 
debt  will  mature.  "Where  the  authorization  of  the  remedy  is 
confined  to  debts  due,  or  where  that  is  the  cause  of  action 
"which  the  creditor  seeks  to  have  aided  (though  other  causes 
may  be  also  statutory  in  his  state),  his  oath  to  the  debt,  with- 
out averring  it  to  be  due,  is  insufficient.^ 

1  Bank  of  California  v.  Boyd,  86  331 ;  Tanner,  etc.  Co.  v.  Hall,  22  Fla, 

Cal.  386 ;  Dunn  v.  Markey,  80  id.  107 ;  391 ;  Avery  v.  Zander,  77  Tex.  207 ; 

Fremont,  etc.  Co.  v.  Fulton,  103  Ind.  Rouss  v.  Wright,  14  Neb.  457;  People 

893.  V.  Blanchard,  61  Mich.  478 ;  Cosner  v. 

-'Weaver  v.  Hay  ward,  41  Cal.  117;  Smith,  36  W.  Va.  788;  Wells  v.  Ho- 

Wheeler  v.  Farmer,  38  id.  215.  gau,  2  Fa.  Dist.  R.  98. 

3  Koutina  v.  Culpepper,  75  Ga.  602 ;  *  Ruthe  v.  Green  Bay  &  Minn.  R 
Bartlett  v.  Ware,  74  Me.  272 ;  Belfast  R  Co.,  37  Wis.  344 ;  Robinson  v.  Bur- 
Savings  Bank  v.  K.  L.  &  K  Co.,  73  ton,  5  Kan.  293 ;  Klenk  v.  Schwalm, 
id.     404;     Quarles    v.    Robinson,    1  19  Wis.  111. 

Chandler,   29;   Hale  v.  Chandler,   3  5  Buehler  v.  De  Lemos,  84  Mich. 

Mich.  531 ;  Wilson  v.  Arnold,  5  id.  554.     Compare  People  v.  Blanchard, 

98,  104 ;  Russell  r.  Gregory,  62  Ala.  61  id.  478,  487. 

454 ;  Lyon  v.  Blakesly,  19  Hun,  299 ;  6  Hochstadder  v.  Sam,  73  Tex.  35. 

Jacoby  v.  Gogoll.  5  Serg.  &  Rawle,  "^  Munsheimer    v.   Manhattan,   etc. 

450:  Wilmerding  r'.  Cunningham,  65  Co..  79  Tex.  318;    Hiuzie  v.  Moody 

How.   Pr.   344 ;   Wallach   v.   Sippilli,  (Tex.  Ajip.).  20  S.  W.  769. 

id.  501;  Belden  r.  Wilcox,  47  Hun,  s  Lorillard   v.   Barrett,  77  Ga.  45; 


90  ATTACHMENT   AFFIDAVIT.  [§§  118,  119. 

§  118.  Amount  of  the  deht. —  The  amount  of  the  debt  should 
be  stated  with  precision  ^  and  certainty,^  though,  when  indefi- 
nitely averred  in  the  affidavit,  its  explicit  declaration  in  the 
petition  may  save  the  attachment,'  As  the  amount  must  be 
stated  under  oath,  an  unsworn  petition  would  not  supplement 
the  affidavit  in  this  matter.* 

When  several  notes  were  sued  upon  together,  and  oath  made 
that  a  part  of  them  was  due,  without  any  statement  of  the 
sum  as  a  whole,  the  affidavit  was  held  sufficient.^  The  courts, 
while  requiring  the  definite  statement  of  the  amount,  do  not 
insist  upon  the  requisition  to  such  extent  as  to  overlook  rea- 
sonable circumstances  such  as  those  above  mentioned,  when 
a  different  view  would  defeat  the  purpose  of  the  legislator  in 
providing  the  remedy.^  But  oath  to  the  debt  should  not  be 
on  information  and  belief.' 

§  119.  Amoiint  sicorn  hij  attorney. —  If  the  affidavit  is  by 
the  attorney  of  the  plaintiff,  and  he  swears  positively  to  the 
amount  due,  it  is  held  that  he  need  not  state  the  source  of  his 
knowledge  of  the  fact  swOrn,^  He  may  depose  that  he  is 
familiar  with  the  business  of  the  plaintiff  about  which  he 
makes  oath ;  but  if  he  shows  that  his  knowledge  is  derived 
from  the  plaintiff's  letters,  or  the  like,  he  may  thus  vitiate  the 

Joseph  V.  Stein,  52  id.  333 ;  Tanner,  age,  14  La.  169 ;  Souberain  v.  Reuaux, 

etc.  Co.  V.  Hall,  22  Fla.  391 ;  Jordan  v.  6  La.  Ann.  201.     See  Kahn  v.  Kuhn, 

Frank  (N.  D.),  46  N.  W.  171 ;  Mathews  44  Ark.  404. 

V.  Densraore,  43  Mich.  461,  463 ;  Wells  *  Kelly  v.  Donnelly,  29  Iowa,  70 ; 

V.  Parker,  26  id.  103 ;  Cross  v.  Mc-  Blakely  v.  Bird,  12  id.  601. 

Maken,    17     id.    511 ;     Galloway    v.  ^  Johnson  v.  Buckel,  65  Hun,  601. 

Holmes,  1  Doug.  (Mich.)  350 ;  Fried-  6  Donnelly  v.  Elser,  69  Tex.  282 ; 

lander   v.    Myers,   2    La.   Ann.   920 ;  Phelps  v.  Young.  1  111.  256 ;  McClan- 

Munroe  v.   Cocke,   2  Cranch   C.    C.  ahan  v.  Brack,  46  Miss.  246 ;  Turner 

465 :  Lathrop  v.  Snyder,  16  Wis.  298 ;  v.  McDaniel,  1  McCord,  552 ;  Holsten 

Levy  V.  Levy,  11  La.  581.  Manuf.  Co.  v.  Lea,  18  Ga.  647 ;  Thier- 

1  Rupert  V.  Haug,  87  N.  Y.  141;  man  v.  Vahle,  32  Ind.  400 ;  Hafley  v. 
Pomeroy  v.  Ricketts,  27  Hun,  242;  Patterson,  47  Ala.  271;  Gutman  v. 
Hawes  v.  Clement,  64  Wis.  152.  Va.  Iron  Works  Co.,  5  W.  Va.  22. 

2  Black  V.  Scanlon,  48  Ga.  12 ;  '  Ross  v.  Steen,  20  Fla.  443 ;  Gazen 
Hodgeman  v.  Barker,  128  N.  Y.  601 ;  v.  Royce,  78  Ga.  513. 

Kahle  v.  MuUer,  57  Hun,  144 ;  Man-        8  Anderson  v.  Wehe,  58  Wis.  615 ; 

ton  V.  Poole,  67  Barb.  330.  Wiley  v.  Aultman,  53  id.  560 ;  Rice 

3  Willis  V.  Mooring,  63  Tex.  340;  v.  Morner,  64  id.  599;  Simpson  v. 
Joiner  v.  Perkins,  59  id,  300 ;  Morgan  McCarty,  78  Cal.  175. 

V.  Johnson,  15  id,  568 ;  Boone  v.  Sav- 


§§  120,  121.]  STATING    THE    DEBT.  91 

affidavit.^  It  is  not  laid  down  that  attorneys'  depositions  for 
their  clients  are  everywhere  exceptional  to  the  general  rule 
that  the  source  of  the  agent's  knowledge  must  appear  in  the 
affidavit.- 

§  120.  Overstatement. —  Overstatement  of  the  amount 
claimed  is  not  such  want  of  certainty  as  to  prove  fatal.'  An 
overestimate  of  interest  is  not  vitiatory  when  the  principal 
and  time  are  correctly  given  so  that  the  miscalculation  may 
be  readily  rectified.'' 

If  the  statement  is  that  the  debt  exceeds  a  sum  named,  it 
will  be  confined  to  the  amount  mentioned  and  the  averment 
of  excess  is  harmless.-^ 

§121.  Counter-claims. —  Several  statutes  require  oath  that 
a  claim  for  breach  of  contract  must  be  sworn  to  be  due  above 
all  discounts  and  set-ofi's.'^  The  meaning  is  "  above  all "  known 
to  the  plaintiff — not  the  deponent  when  he  is  a  mere  agent,^ 
unless  the  plaintiff  is  a  corporation  and  the  knowledge  of  the 
deposing  officer  is  that  of  the  body.^ 

When  the  plaintiff  made  oath  to  the  amount  due  above  all 
legal  set-offs  "as  near  as  can  be  specified,"  he  thus  comj^lied 
substantially  with  the  statute  requirement  of  an  affidavit  that 
the  amount  is  "  as  near  as  may  be  over  and  above  all  legal 
set-offs."  ® 

1  Trautraanu  v.  Schvvalm,  80  Wis.        6  Thorington  v.  Merrick,  101  N.  Y. 

275 ;  Streissguth  v.  Reigelman  (Wis.),  5 ;  Donnell  v.  Williams,  21  Hun,  21(i ; 

43  N.  W.  1116.  28  N.  Y.  Supreme  Ct.  216;  Taylor  v. 

-'  Buhl  V.  Ball,  41  Hun,  61 ;  Ameri-  Reed,  54  How.  Pr.  27 ;  Alford  v.  Cobb, 

can  Bank  v.  Voisin,  44  id.  85 ;  Ben-  28  Hun,  22,  in  exposition  of  Code  Civ 

nett  V.  Edwards,  27  id.  352 ;  Cribbeu  Proc,  §§  635,  636 ;    Burnett  v.  Mc- 

V.  Schillenger,  30  id.  248 ;  Myers  v.  Cluey,  92  Mo.  230. 
Whiteheart,  24  S.  C.  196;  Newman        -  Moore  r.  Neill,  86  Ga.  186;  Mein 

V.  Hexter,  4  MacArthur,  88.     Com-  hard  v.  Neill,  85  id.  265 ;  N.  Y.  Civ. 

pare  Anderson  v.  Wehe,  58  Wis.  615.  Code  Proc,  §  636.     See  Crowns  v. 

SGrover  v.   Buck.   34  Mich.   519;  Vail,  51  Hun,  204;  Lee  r.  Ass'n,  50 

Barker  v.  Thorn,  20  id.  265;  De  Staf-  id.  604;  Smith  v.  Arnold,  33  id.  848; 

ford  u  Gar tley,  15  Colo.  32.  Cribben   v.   Schillenger,  30  id.   248; 

■*  Rainwater,  etc.  Co.  v.  Oneal,  82  Patterson  v.  Delaney,  20  Civ.  Proc. 

Tex.  337.  R.   427 :    Nelson  v.  Field,  89    Tenn. 

5  Nelson  v.  Munch,  23  Minn.  229 ;  466 ;  Ketchin  v.  Landecker,  32  S.  C. 

Flower  v.  Griffith,  12  La.  345 ;  Elam  155. 

V.  Barr,  11  La.  Ann.  622 ;  Henrie  v.        ^  See  Essex  Co.  Bank  v.  Johnson,  61 

Sweasey,  5  Blackford,  273 ;  Stewart  v.  Hun,  625. 
lleidenheimer,  55  Tex.  644.  9  Barker  v.   Thorn,   20  Mich.   264. 


92  ATTACHMENT   AFFIDAVIT.  [§  122. 

The  possession  of  the  defendant's  property  need  not  be  dis- 
closed. Though  the  plaintiff  hold  enough  in  value  to  equal  his 
claim  it  is  no  set-off,  and  the  defendant  cannot  defeat  the  at- 
tachment suit  by  proving  such  possession  by  the  plaintiff,  even 
though  held  under  a  lien.^ 

Y.  Laying  the  Grounds. 

§  122.  Following  the  statute. —  The  grounds  for  the  writ 
can  be  no  other  than  those  authorized  by  the  statute  upon 
which  the  plaintiff  proceeds.^  He  must  swear  to  one  or  more 
in  his  affidavit.  One  good  ground  is  sufficient.*  He  must 
bring  himself  strictly  within  the  authorization  for  the  extraor- 
dinary remedy  which  he  invokes.  However  artistically  he 
may  have  set  forth  the  indebtedness,  it  will  avail  him  noth- 
ing if  he  should  fail  to  show  that  the  defendant  is  a  non-resi- 
dent, or  has  absconded,  or  is  about  to  abscond,  or  is  secreting 
his  property  or  himself  to  avoid  legal  proceedings,  or  some 
other  ground  specified  in  the  statute.  And  the  statement  of 
such  fact  must  be  plain  and  unequivocal,  such  as  would  subject 
him  to  all  the  consequences  of  any  wrong  done  thereby  in 
case  the  statements  should  prove  false. 

The  laying  of  the  grounds  must  be  substantially  according 
to  statute,  though  not  necessarily  in  its  verbiage.*    While 

See  Pickhardt  v.  Antony,  27  Hun,  Leonardo.   Stout,   36  N.  J.  L.  370; 

269:  Mendes  v.  Freiters,  16  Nev.  388.  Curtis  v.  Settle,  7  Mo.  452:  Campbell 

1  Homer  v.  Falconer,  60  N.  H.  203 ;  v.  Hall.  McCahon,  53 ;  Talcott  v.  Ros- 
Wehle  V.  Conner,  83  N.  Y.  231-8.  enberg,  8  Abb.  Pr.  (N.  S.)  289;  Cham- 
Compare  Germania  Sav.  Bank  v.  bers  v.  Sloan,  19  Ga.  84 ;  Kennon  v. 
Penser,  40  La.  Ann.  796.  Evans,  36  id.  89 ;  Van  Kirk  v.  Wilds, 

2  Matter  of  Fitch,  2  Wend.  298;  11  Barb.  520;  Cross  u  McMaken,  17 
Tallman  v.  Bigelow,  10  id.  420;  Ex  Mich.  511;  Skiff  v.  Stuart,  39  How. 
jfjarfe  Haynes,  18  id.  611;  Smith  v.  (N.  Y.)  Pr.  385;  Graham  v.  Ruff,  8 
Luce,  14  id.  237;  Matter  of  Brown,  Ala.  171;  Ware  v.  Todd,  1  id.  199; 
21  id.  316 ;  Ex  parte  Robinson,  id.  Bank  of  Ala.  x:  Berry,  2  Humph.  443 ; 
672;  Matter  of  Faulkner,  4  Hill  (N.  Boydu  Burkiugham,  10  id.  434;  Run- 
Y.),  598 ;  Matter  of  Bliss,  7  id.  187 ;  yan  v.  Morgan,  7  id.  210 ;  Sawyer  v. 
Pierse  v.  Smith,  1  Minn.  82;  Morri-  Arnold,  1  La.  Ann.  315;  Parmelee  v. 
son  V.  Lovejoy,  6  id.  183.  Johnston,  15  La.  429 ;  Lee  v.  Peters,  1 

3  Lawver  v.  Langhans,  85  111.  138;  Smedes  &  M.  503;  Commercial  Bank 
Keith  u  Stetter,  25  Kan.  155;  Mo-  v.  Ullmau,  10  id.  411;  Dandridge  v. 
CoUem  V.  White,  23  Ind.  43.  Stevens.  12  id.  723;  Bussey  v.  Roths- 

4  Parker  v.   Scott,   64  N.   C.    118;  childs,  26   La.   Ann.   258;  Wallis  v. 


§  123.]  LAYING    THE    GROUNDS.  93 

courts  have  no  power  to  issue  the  writ  except  as  conferred 
by  statute,  yet  they  must  use  their  judgment  in  determin- 
ing whether  the  statute  has  been  complied  with  by  the  plaint- 
iff in  making  his  preliminary  showing,  and  whether  a  slight 
deviation  from  the  requirements  of  the  statute  is,  in  any 
case,  sufficient  to  vitiate  the  affidavit  and  render  it  insecure 
as  the  foundation  of  an  attachment  suit.  Law  has  been  de- 
fined, "A  solemn  expression  of  legislative  will;"  and  if  tho 
will  of  the  legislature  can  be  seen,  through  a  statute,  and  the 
plaintiff,  in  making  an  affidavit,  has  virtually  and  substan- 
tially complied  with  that  will,  the  court  should  sustain  the 
affidavit. 

On  the  other  hand,  the  rights  of  the  defendant  are  to  be 
protected.  He  is  not  to  be  held  as  defendant  under  an  at- 
tachment suit  in  the  absence  of  a  substantial  compliance  with 
the  law  on  the  part  of  the  plaintiff.  There  is  to  be  no  guess- 
ing at  the  meaning.  There  is  to  be  no  supplementing  of  the 
oath,  to  make  it  cover  the  requirements  of  the  statute,  by  an 
over-liberal  rendering  on  the  part  of  the  court.  Where  the 
affidavit  is  insufficient,  the  writ  should  be  denied.^ 

§  123.  Charging  fraud. —  There  may  be  such  a  statement 
of  fraud  and  intent  to   defraud   raadg   against  the  debtor, 

Wallace  6  How.  (Miss.)  254 ;  Earl  v.  Blackford,  25 ;    Powers  v.  Hurst,  3 

Camp,  16  Wend.  562 ;  Parker  v.  Wal-  id.     229 ;     Derries    v.     Summit,    86 

rod,   id.   514;  Wiltse  v.    Stearns,  13  86  N.  C.  126;  Mantz  v.   Hendley,   2 

Iowa,    282 ;    Beach    v.    Botsford,    1  Hening  &  Munford,  308 ;    Manly  v. 

Doug.    (Mich.)   199 ;    Leroy  v.   East  Headley,  10  Kan.  88 ;  Wallis  v.  Mur- 

Saginaw  Ry.,  18  Mich.  233;  Watkins  phy,  2  Stewart.  15  ;  Hargadine  r.  Van 

V.  Wallace,  19  id.   57,  74 ;  Mandel  v.  Horn,  72  Mo.  370 ;  Lane  v.  Fellows, 

Peet,  18Ark.236;SellickuTruesdall,  1   id.    251;    Alexander  u  Haden,  2 

Dudley  (GTa.),  196 ;  Levy  v.  Millman,  id.   187 ;     Millaudon  v.   Foucher.    8 

7  Ga.    167;  Phelps  u.  Young,    1  111.  La.  582;  New  Orleans  u.  Garland,  11 

256;  Hilton  u  Ross,  9  Neb.  406.  La.  Ann.  438;  Reding  v.  Ridge,  14 

1  Campbell   v.  Hall,   McCahon,  53 ;  id.  36 ;  McCulloch  v.  Foster,  4  Yerger, 

Drew    V.    Dequindre.  2    Doug.    93 ;  162 ;    Wharton  v.  Conger,  9  Smedes 

Weimeisterr.  Manville,  44Mich.  408;  &  M.  510;    Croxall  v.   Hutchins,   7 

Poage  V.  Poage,  3  Dana,  579 ;  Skiff  v.  Halsted,   84 ;    Messner  v.   Hutchins, 

Stuart,  39  How.  (N.Y.)Pr.  385;  Nap-  17    Tex.    597;    Levy    r.  Millman,    7 

per  r.  Noland,  9  Porter,  218;  Claus-  Ga.    167;    Brown   v.  McCluskey.  26 

sen  V.  Fultz,  13  S.  C.  476 ;  Bennett  v.  id.  577 ;  Allen  v.  Fleming,  14  Rich. 

Avant,  2  Sneed,  152 ;  Wright  v.  Smith,  196 ;  Winkler  v.  Barthel,  6  111.  App. 

66    Ala    545;     Davis    v.    Edwards,  111, 
Hardin,  342;  Hamilton  v.  Knight,  1 


94  ATTACHMENT   AFFIDAVIT.  [§  123. 

on  account  of  his  disposition  of  his  property  to  defeat  the 
claims  of  creditors,  as  would  be  sufficient  for  the  arrest  of  the 
debtor,  and  yet  the  allegations  may  be  inadequate  to  authorize 
a  writ  of  attachment  because  of  the  absence  of  some  necessary 
averment.^  The  affidavit  should  be  specific ;  -  but  it  has  been 
held  that,  without  setting  out  specific  acts  of  fraud,  statements 
in  accordance  with  the  statute  requirements  will  warrant  the 
issuance  of  the  writ.^  An  affidavit  that  the  debtor  has  fraudu- 
lently disposed  of  part  of  his  property,  and  has  other  property 
which  he  fraudulently  withholds,  was  held  good ;  *  but  to 
swear  that  he  is  fraudulently  disposing  of  it  is  not  sufficient 
to  support  a  petition  on  the  ground  that  he  has  fraudulently 
mortgaged  all  his  property.^  An  affidavit  that  the  defendant 
sold  property  with  intent  to  defraud  is  not  supported  by  evi- 
dence that  he  sold  cheaply,  did  business  recklessly,  and  the 
like.« 

When  fraud  is  the  ground  and  it  is  not  charged  in  the  affi" 
davit  specifically  under  a  statute  requiring  it  to  be  thus  set 
forth,  the  attachment  should  be  denied ;  or  if  it  has  been 
granted,  it  should  be  dissolved  upon  application.'^  Charging 
that  the  debtor's  acts  were  for  the  purpose  of  delaying  and 
hindering  his  creditors  has  been  held  sufficient,^  though  "  de- 
frauding" is  usually  added.  Charging  fraudulent  assign- 
ment for  the  purpose  above  mentioned  is  good.^  So  the 
allegations  by  the  deponent  that  the  defendant  has  disposed 
of  most  of  his  property  and  is  about  to  dispose  of  the  rest, 
with  intent  to  defraud  his  creditors,  are  sufficient.^"  As  a  gen- 
eral rule  the  charge  of  fraud  should  be  positive  in  an  affidavit 
for  attachment  on  that  ground."  If  prima  facie  good,  the 
allegations  will  hold  if  not  contradicted. 

i  Achelis  v.  Kalman,  60  How.  (N.  &  Simpson  v.  Holt,  89  Ga.  834. 

Y.)  Pr.  491 ;  Claussen  v.  Fultz,  13  S.  «  Wands,  etc.  v.  Rosenberg,  31  S.  C. 

C.  476;  Cobb  v.  Force,  6  Ala.  468.  301 ;  Kibbe  v.  Herman,  51  Hun,  438. 

2  Simpson  v.  Haigbt,  89  Ga.  834.  ^  Biddle  v.  Black,  99  Pa.  St.  380. 

3  Auerbach  v.  Hitchcock,  28  Minn.  »  Keith  v.  McDonald,  31  111.  App.  17. 
73;  Sharpless  v.  Zeigler,  92  Pa.  St  9  Citizens'  Bank  v.  Williams,  59 
467 ;  Stevens  v.  Middleton,  26  Hun,  Hun,  617. 

470 ;  Harris  v.   Budd,  1  Pa.  Dist.  R.  i"  Roddey  v.  Erwin,  31  S.  C.  36. 

83 ;  Spencer  V.  Bloom  (Pa.),  24  A.  185.  "Enekiug    v.    Clay,    79    Ca.    598; 

4  Nelson  v.  Munch,  23  Minn.  239 ;  gg  57-72 ;  Rickel  v.  Strelinger  (Mich.), 
Cleveland  v.  Boden,  63  Tex.  103.  60  N.  W.  307. 


§§  124,  125,]  LAYING    THE    GROUNDS.  95 

It  would  not  be  sufficient  to  charge  that  the  debtor  has  sold 
his  property  below  the  market  value,  with  no  other  facts  to 
make  out  fraud.^  It  is  useless  to  state  acts  done  to  defraud 
when  the  acts  themselves  are  not  fraudulent.^  Facts  not  cer- 
tainly within  the  affiant's  knowledge  cannot  be  made  the 
source  whence  fraudulent  disposition  of  property  may  be  in- 
ferred.* 

The  property  of  a  debtor  is  not  attachable  for  the  fraud  of 
his  absconding  partner.*  But  under  the  charge  that  the  de- 
fendant firm  is  about  to  dispose  fraudulently,  etc.,  the  plaintiff 
may  support  the  allegation  by  proving  that  a  member  of  the 
firm  is  doing  so  with  the  partnership  property.'^ 

§  121:.  To  swear  merely  that  the  debtor  has  left  the  state 
without  adding  that  he  left  with  the  intention  of  removing 
his  goods  from  the  state  (or  that  he  is  concealing  himself, 
without  adding  "to  avoid  process"),  when  the  latter  is  re- 
quired to  be  stated,  is  insufficient."  Setting  forth  such  facts 
in  an  intelligible  way  without  using  statute  phraseology  will 
answer  the  demands  of  the  law ;  ^  but  general  averments,  not 
connecting  the  plaintiff  with  the  fraudulent  acts  charged  so 
as  to  show  that  he  is  interested  in  his  application  for  the  at- 
tachment, would  be  entirely  too  vague.  For  instance,  to  aver 
merely  that  the  debtor  is  about  to  transfer  his  property  for 
the  purpose  of  defrauding  his  creditors,  yet  to  omit  stating  that 
the  plaintiff  would  lose  his  debt  unless  allowed  the  remedy 
sought,  or  equivalent  words,  was  held  erroneous,  and  the  affi- 
davit declared  defective.* 

§  125.  Absconding. —  To  charge  absconding  as  a  ground,  it 
is  not  enough  to  aver  that  the  defendant  is  in  another  state 
and  is  about  to  dispose  of  his  property.^  ISTon-residence,  though 
a  material  fact  when  it  is  the  ground  of  attachment,  may  be 

1  Dintruff  v.  Tuthill,  63  Hun,  591.  5  Wilson  v.  Cole,  26  Mo.  App.  5. 

2  Delaplain  v.  Armstrong,  31  W.  "  Crayne  v.  Wells,  2  111.  App.  574 ; 
Ya.   311 ;    Laudeman  v.  Wilson,  39     Winkler  v.  Barthel,  6  id.  111. 

id.  703 :  Hale  v.  Donahue,  35  id.  414.  "  Van  Loon  v.  Lyons,  61  N.  Y.  22 ; 

5  Thompson  v.  Dickinson,  58  Hun,  Free  v.  Hukill,  44  Ala.  197. 

603 ;  Dickson  v.   Mayer,  58  id.   609 ;  «  Sheffield  v.  Gay,  33  Tex.  225. 

Ivy  V.  Caston,  21  S.  C.  583.  ■'  State    v.    Morns,    50   Iowa,   303 ; 

*  Bogart  V.  Dart,  35  Hun,  395,  Com-  §^  55,  56.    See  Guckenheimer  v.  Libby 

pare  Mills  v.  Brown,  3   Met.   (Ky.)  (S.  C,),  19  S.  E.  999. 
404 ;  Duncan  v.  Headley,  4  Bush,  45. 


96  ATTACHMENT    AFFIDAVIT.  [§  126. 

a  matter  of  inference  from  the  facts  stated,  if  it  is  the  only- 
inference  that  can  logically  be  drawn  from  the  facts. ^  It  could 
not  be  inferred  that  the  defendant  is  a  non-resident  or  an 
abscondino:  debtor  from  the  vao^ue  averment  that  he  has  left 
the  state;  certainly  it  could  not  be  inferred  to  the  exclusion 
of  every  other  hypothesis.^  Nor  could  it  be  concluded,  under 
such  averment,  that  his  leaving  was  with  intent  to  defraud  his 
creditors.^ 

§  126.  It  is  sufHcient  to  swear  that  the  defendant  is  "  not  a 
resident."  *  It  is  held  that  an  affidavit  against  a  non-resident 
partner  must  also  show  his  partners  non-resident  when  the 
claim  is  against  the  named  defendant  and  others  unnamed 
described  as  his  partners.^ 

The  fact  of  non-residence  should  be  positively  sworn,  though 
the  place  of  residence  may  be  stated  on  information;^  but  to 
swear  that  the  defendant's  residence  was  at  a  stated  place 
two  years  before  is  bad.^ 

The  affidavit  of  the  plaintiff  on  information  and  belief  of 
the  defendant's  non-residence,  supported  by  the  affidavit  of 
his  attorney  and  the  return,  "  not  found,"  of  the  sheriff,  was 
held  sufficient.^ 

In  a  tort  suit  against  a  doctor  for  malpractice,  an  affidavit 
must  state  particulars  of  the  wrong  done ;  the  general  alle- 
gation of  malpractice  has  been  held  insufficient.® 

1  Mayor,  etc.  of  N.  Y.  v.  Genet,  4  See  Webster  v.  Daniel,  47  Ark.  131. 
Hun,  487 ;  Graham  v.  Ruflf,  8  Ala.  Under  the  Code  of  Civil  Procedure, 
171 ;  McKiernan  v.  Massingill,  14  section  1780,  an  attachment  was  va- 
Miss.  375;  James  v.  Dovvell,  15  id.  cated  because  the  affidavit  did  not 
333.  show  the  plaintiff  a  resident,  or  that 

2  Mutherrin  v.  Hill,  5  Heisk.  58.  the  cause  of  action  arose  in  the  state. 

3  Love  V.  Young,  69  N.  C.  65.  Oliver  i\  Man.  Co.,  57  Hun,  588.    The 
*  Nagel  V.  Loomis  (Neb.),  50  N.  W.     omission  of  these  facts  in  the  affida- 

441.  vit  cannot  be  supplied  by  amend- 

0  Corbit  V.  Corbit,  50  N.  J.  L.  363 ;  ment. 

Barber  v.  Robeson,  3  Green  (N.  J.),  ^  In  Michigan,  under  statute :  Mc- 

17 ;  Curtis  v.  HoUingshead,  2  id.  402.  Crea  v.    Circuit  Judge    (Mich.),    58 

6  Steel  u  Raphael,  59  Hun,  626.  N.   W.    1118;    Howell  v.   Judge,  88 

7  Baldwin  v.  Ferguson,  35  III.  App.  Mich.  361 ;  Manton  v.  Poole,  67  Barb. 
398.  331.     Compare  Pomeroy  v.  Ricketts,' 

8  Adams  v.  Hilliard,  59  Hun,  626.  27  Hun,  242. 


§  127.J  INFORMATION    AND    BELIEF.  97 

YI.  Information  and  Belief. 

§  127.  Keasonable  latitude  must  be  given  to  the  phraseology 
of  the  sworn  statement.  "Where  oath  "  to  the  best  of  the 
knowledge  and  belief  "  of  the  affiant  is  required,  it  will  suffice 
to  swear  to  information  received  of  defendant  and  believed 
by  deponent.^  But  it  would  not  be  enough  to  swear  "to  the 
best  of  his  knowledge  "  only,  or  "  to  the  best  of  his  belief  " 
only.2 

If  a  partnership  firm  are  plaintiffs,  it  is  the  knowledge  and 
belief  of  the  members  of  the  firm  which  should  be  sworn  to ; 
but  the  affidavit  would  hold,  as  a  sufficient  compliance  with 
the  law,  if  the  knowledge  and  belief  of  the  firm  be  the  subject 
of  the  oath.^ 

"Where  the  plaintiff  is  required  to  make  a  showing  of  cer- 
tain circumstances  to  satisfy  the  court  that  he  is  entitled  to 
the  issuance  of  the  writ,  his  oath  that  he  believes  those  facts 
is  no  proof  of  them.  Considering  the  fallibility  of  human 
judgment,  and  the  partiality  which  a  litigant  usually  feels 
toward  himself,  the  court  is  obliged  to  receive,  with  much 
allowance,  the  honest  statements  of  an  affiant  as  to  "  informa- 
tion received,"  and  what  he  "  verily  believes,"  if  the  law  makes 
the  issuance  of  the  writ  depend  upon  preliminary  proof  of 
circumstances.  Indeed,  the  plaintiff's  belief  is  not  a  circum- 
stance to  be  taken  at  all  into  the  account,  under  such  require- 
ment.^ If  an  affiant  swears  to  a  fact  on  information  and  belief 
based  on  a  communication  by  telephone,  he  must  also  swear 
that  he  knew  the  speaker's  voice.^ 

1  Blake  v.  Bernhard,  6  Thompson  &  Sydnor  v.  Tolman,  6  Tex.  189 ;  Pierse 
C.  (N.  Y.)74;  Howell  r.  Kingsbury,  v.  Smith,  1  Minn.  82;  Morrison  u 
15  Wis.  272.  Lovejoy,  6  id.  183  ;  Murphy  v.  Purdy, 

2  Garner  u  White.  23  Ohio  St.  192;  13  id.  422;  Tallman  v.  Bigelow,  10 
Berghv.  Jayne,  7  Martin  (N.  S.),  98;  Wend.  420;  Ex  parte  Robinson,  21 
McHaney  v.  Cawthorn,  4  Heisk.  508.  id.  672 ;  Matter  of  Faulkner,  4  Hill, 
Swearing  to  belief  has  been  held  suf-  598 ;  Kingsland  v.  Cowman,  5  id.  608 ; 
ticieut  in  New  York.  Ex  parte  Matter  of  Bliss,  7  id.  187;  Dewey  u 
Haynes.  18  Wend.  611;  Matter  of  Green,  4  Den.  (N.  Y.)  93;  Camp  v. 
Fitch,  2  id.  298.  See  Smith  v.  Luce,  Tibbets,  2  E.  D.  Smith  (N.  Y),  520 ; 
14  id.  237.  Hill  r.    Bond,  22   How.  (N.   Y)  Pr. 

3  Stewart  v.  Katz,  30  Md.  334.  272 ;  Brewer  v.  Tucker,  13  Abb.  (N.  Y.) 
*  Hellman  v.  Fowler,  24  Ark.  235 ;     Pr.  76. 

Williams  v.  Martin,  1  Met.  (Ky.)  42 ;        &  Murphy  v.  Jack,  83  Hun,  356. 
Duulevy  v.  Schartz,  17  Ohio  St.  640 ; 
7 


98  ATTACHMENT   AFFIDAVIT.  [§§  128,  129- 

§  128.  One  swearing  upon  information  received  must  state 
the  absence  of  his  informant,  where  the  statute  requires  it ;  and  a 
neglect  of  such  statute  provision  will  render  the  affidavit  insuf- 
ficient.' There  is  a  difference  between  believing  and  havins: 
reason  to  believe ;  and  where  the  state  requires  oath  to  the 
latter,  it  is  not  a  compliance  to  confine  the  oath  to  the  former.^ 
Distinction  is  made  between  material  and  less  important  alle- 
gations, with  regard  to  positive  knowledge  of  them;  and  the 
former  cannot  be  received  merely  upon  oath  of  information  and 
belief,  where  positiveness  is  required;*  nor  upon  apprehension 
and  belief.'*  Distinction  is  made  between  swearing  that  affiant 
thinks  and  swearing  that  he  helie'ves;  ^  but  such  differentiation 
seems  too  fine  when  only  opinion  is  the  subject  of  the  oath. 

Material  allegations,  even  charging  fraud  as  a  ground,  may 
be  upon  information  and  belief,  if  other  facts,  tending  to  sus- 
tain the  material  averments,  be  positively  averred  in  the  affi- 
davit." Positively  sworn  averments  are  often  nothing  more 
than  reasonable  belief  attested  under  oath.'' 

§  129.  Facts. —  Swearing  to  "good  reason  to  believe,"  with- 
out stating  facts,  is  insufficient.^  And  so  is  a  positive  oath 
to  belief,  if  the  statute  requires  facts.^  The  source  of  infor- 
mation and  belief  should  be  set  forth.'*'  It  should  not  be  re- 
mote.''    The  oath  should  not  be  "  partly  on  information  and 

1  Steuben  Co.  Bank  v.  Alberger,  78  and  belief,  and  held  sufficient  Hess 
N.  Y.  252.     In  Alabama  the  attorney    v.  Bower,  76  N.  C.  428. 

of  a  non-resident  client  swore  that  he  ^  Rittenhouse  v.  Harman,  7  W.  Va. 

was  informed  and  believed  and  there-  3S0. 

fore  stated  tliat  the  defendant,  who  ^  As,  that  the  facts  sworn  on  infor- 

was  a  non-resident,  was  justly  in-  mation  had  been  stated  to  the  defend- 

debted,   etc.,  and  the  affidavit   was  ant  and  that  he  had  admitted  their 

held  good.     Mitchell  v.  Pitts,  61  Ala.  truth.     Blake  v.  Bernhard,  6  Thomp- 

219.     Under  similar  circumstances,  son  &  C.  (N.  Y.)  74 ;  3  Hun,  397. 

held  bad  in  Georgia.   Neal  v.  Gordon,  "  Simpkius  v.  Malatt,  9  Ind.  543. 

'60  Ga.  113.  8  Gates  v.  Bloom  (Pa.),  24  A.  184. 

2  Hunt  V.  Strew,  39  Mich.  368.  sClowser  v.  Hall,  80  Va.  864;  Ross 

3  Claflin  V.  Baere,  57  How.  (N.  Y.)  v.  Steen,  20  Fla.  443, 

Pr.  78;  Greene  n  Tripp,  11  R.  I.  424;  lOMann    v.    Carter,    71    Hun,    72; 

Archer  v.  Claflin,  31  111.  306 ;  Dyer  v\  Hitner  v.  Boutilier,  67  id.  203 ;  Crowns 

Flint,  21  id  80.                                       '  v.  Vail,  51  id.  204 ;  Kokomo,  etc.  Co. 

*  Brown  v.  Crenshaw,  5  Bax.  584.  v.  Inman,  53  id.  39 ;  Webster  v.  Daniel, 

In  North  Carolina,  indebtedness  and  47  Ark.  131 ;  Byles  v.  Rowe,  64  Mich, 

departure  from  the  state  being  sworn  522. 

positively,    "  intent   to    avoid    sum-  ii  Hudkins  v.  Haskins,  22  W.  Va. 

mons"   was  sworn   on   information  645. 


§   129.]  INFORMATION    AND    BELIEF.  99 

belief " —  so  held.^  It  should  not  be  made  on  mere  suspicion 
that  the  defendant  is  about  to  assign  fraudulently.^ 

"  Yerily  believes "  is  bad  when  the  statutory  form  pre- 
scribed is  "  to  the  best  of  his  [affiant's]  knowledge  and  belief."  * 
AVhen  reasons  for  belief  are  required  to  be  assigned,  it  is  not 
sufficient  to  say  merely  that  the  affiant  believes  that  the  de- 
fendant is  about  fraudulently  to  remove  his  property.*  But 
a  positive  oath  that  the  defendant  is  about  fraudulently  to 
remove  his  property,  or  positive  oath  to  any  other  ground,  is 
good  without  stating  belief  or  giving  reasons.^  Substantial 
compliance  with  the  statute  is  sufficient.*'  There  have  been 
several  comparatively  recent  decisions  on  swearing  to  infor- 
mation and  belief  under  different  states  of  facts.'' 

§  129.  Inference^  to  the  exclusion  of  all  other  hypotheses,  is 
not  required,  but  rather  the  most  probable  inference  from  the 
facts,  in  matters  where  the  statute  need  not  be  followed  liter- 
ally.8 

Hearsay  is  not  necessarily  excluded  in  making  the  showing, 
upon  oath,  of  circumstances  required  to  justify  the  issuing  of 
the  writ.  What  has  been  said  by  members  of  a  runaway 
debtor's  family  may  be  mentioned  as  contributory  to  the  con- 
clusion that  he  has  absconded ;  or  that  he  has  left  the  state 
permanently;  or  that  he  has  concealed  goods.  The  court 
must  be  satisfied  that  there  is  good  ground  for  the  attachment 
under  the  statute,  though  the  proof  fall  short  of  what  would 
be  necessary  to  sustain  a  judgment  for  the  plaintiff  upon  the 
trial.  Or,  if  the  clerk  is  to  have  discretion  and  be  satisfied 
npon  evidence  before  issuing  the  writ,  the  rule  is  the  same : 
for  the  clerk  is  the  right  hand  of  the  court,  and  the  writ  is 
issued  through  him  rather  than  by  him. 

1  Brown  v.  Mossman,  71  Ga.  859 ;  Delaney,  59  Hun,  626.  Held  bad, 
Ga.  Code,  g  3297.  under  facts  stated :  Bunipr.  Deliany, 

2  Atlas  Furniture  Co.  v.  Freeman,  59  Hun,  619;  Ketchin  v.  Landecker, 
70  Hun,  13.  82  S.  C.  155;  Sannoner  v.  Jacobsou, 

3  Stadler  v.  Parmlee,  10  la.  23.  47  Ark.  31 ;  Nelson  v.  Fuld,  89  Tenn. 
*  Merrill  v.  Low,  1  Pinney,  221.  466,  overruling  Lester  v.  Cummings, 
5  Jones  V.  Leake,. 11  S.  &  M.  591.         8  Humph.  384. 

«  Frere  v.  Ferret,  25  La.  Ann.  500.        '^  Talcott  v.  Rozenberg,  3  Daly,  203 

"^  Held  sufficient  under  the  facts  (8  Abb.   Pr.    N.   S.   287) ;  Cooney  v. 

stated  in  the  opinions :  Buell  v.  Van  Whittield,  41  How.  Pr.  6 ;    Ware  v. 

Camp,  119  N.  Y.  160;  King  v.  South-  Todd,  1  Ala.  199.     See  Tufts  v.  Vol- 

wick,  06  How.  Pr.  282 ;  Patterson  v.  kening  (Mo.),  27  S.  W.  522. 


100  ATTACHMENT    AFFIDAVIT.  [§  130. 

"Whatever  the  circumstances  adduced,  the  affiant  must  swear 
to  his  belief  of  their  truth.  This  requirement  is  a  safeguard 
to  prevent  the  officer  from  being  trifled  with,  and  to  check 
the  plaintiff  from  trying  doubtful  experiments. 

There  must  be  nothing  contradictory  between  the  petition 
and  affidavit  in  essential  averments.'  Allegations  that  the 
defendant  was  insolvent  when  he  gave  the  notes  sued  on, 
when  the  affidavit  showed  that  the  ground  of  attachment  was 
his  transfer  of  property  to  the  creditors  whose  claims  created 
the  insolvency,  were  held  fatal  to  the  attachment.^ 

§  130.  An  agent  or  attorney  of  the  plaintiff,  in  his  absence, 
may  make  the  affidavit  for  him,  to  the  best  of  his  knowledge 
and  belief,  but  ought  to  state  the  ground  of  his  belief  and  the 
source  of  his  knowledge,  though  this  is  not  everywhere  re- 
quired.^ 

One  agent  or  attorney  may  swear  to  some  facts,  and  an- 
other to  others,  so  as  to  lay  the  ground  for  attachment.^ 

The  oath  of  attorneys  is  usually  to  knowledge  and  belief.^ 
They  may  not  have  personal  knowledge,  such  as  would  enable 
them  to  substantiate  all  the  required  facts  in  the  capacity  of 
witnesses,  but  they  may  have  received  credible  information, 
such  as  has  really  induced  belief;  and  that  is  sufficient  show- 
ing for  the  issuance  of  the  writ,  to  be  followed  by  the  plead- 
ings and  the  testing  of  the  truth  of  such  information  received. 
ISTo  one  can  be  hurt,  since  the  plaintiff's  bond  stands  behind 
the  affidavit  to  secure  the  defendant  against  any  wrong. 

Where  ag-ents  are  allowed  to  make  the  oath,  if  the  statute 
requires  that  the  plaintiff's  knowledge  and  belief  be  sworn 
to,  the  agent  must  swear  to  his  principal's  knowledge  and 
conviction  and  not  to  his  own,^  But  his  personal  information 
may  be  better  than  that  of  his  principal,  and  he  may  swear 
to  it  as  such  when  there  is  no  statutory  impediment.^     He  is 

1  Evans  v.  Tucker,  59  Tex.  349.  "one  of  the  attorneys  of  plaintiff." 

2  Johnson  v.  Buckel,  65  Hun,  GOl.  Tessier  v.  Crowley,  16  Neb.  369. 

3  Mitchell    V.    Pitts,   61    Ala.   219;  5  Mitchell    v.   Pitts,    61    Ala.   219; 
Bridges  v.  Williams,  1  Martin,  N.  S.  White  v.  Stanley,  29  Ohio  St.  423 ; 
(La.)  98 ;  Dinkelspiel  v.  Woolen  Mills  Howell  v.  Kingsbury,  15  Wis.  272. 
(La.),  15  So.  282 ;  La.  Code  of  Prac-  «  Stewart    v.    Katz,    80    Md.   334 ; 
tice,  arts.  216-244.  Dean   v.    Oppenheimer,   25   id.   368; 

^  Lewis  V.  Stewart,  62  Tex.  352.  Murray  u.  Hankin,  65  How.  Pr.  511. 
The  affiant  may  describe  himself  as        ^Eausch  v.  Moore,  48  Iowa,  611. 


f§  131,  132.]  CERTAINTY.  101 

acting-  for  bis  principal  in  making  the  preliminary  showing 
to  take  out  the  process. 

Obviously,  when  be  comes  to  sustain  the  attachment  con- 
tradictorily with  the  defendant,  he  is  a  competent  witness  to 
prove  facts  —  not  mere  belief. 

§  131.  Agency. —  It  will  be  understood  that,  as  an  affidavit 
is  not  pleading,  no  artistic  form  of  oath  to  his  authority  is 
required  by  the  affiant  when  he  is  an  agent.  His  statement 
of  the  fact  anywhere  in  the  body  of  the  affidavit  will  suffice; 
but  "  J.  K.  on  behalf  of  J.  S.,  being  duly  sworn,"  was  held 
not  sufficient.^ 

It  has  even  been  held  that  agency  need  not  be  shown  in  the 
affidavit ;  -  that,  at  most,  omission  to  show  it  therein  is  only 
a  formal  defect  which  cannot  be  noticed  above  the  trial  court.* 
But  the  better  view  is  that  the  affidavit  should  show  that  the 
deponent  is  the  agent  of  the  plaintiff,  when  it  is  made  by  him 
and  not  by  the  principal.'*  If  the  affiant  represents  himself  as 
agent,  either  by  his  signature  or  by  statement  in  the  body  of 
the  affidavit,  it  has  been  held  that  he  will  be  presumed  to  be 
the  agent  of  the  plaintiff  though  he  does  not  mention  him.s 
He  is  not  required  to  file  any  power  of  attorney  with  his  affi- 
davit. If  his  authority  is  questioned  it  must  be  shown.  It 
is  held  thai  authorization  to  collect  debt  gives  the  right  to 
make  affidavit  for  attachment.^ 

YII.  Certainty. 

§  132.  The  necessary  thing  is  certainty  in  the  compliance 
with  requirements.  Nothing  ambiguous,  in  essential  points, 
will  be  sufficient.  The  plaintiff  must  positively  state  his 
grounds,  whether  absolute  knowledge  is  required,  or  an  abso- 
lute statement  of  the  fact  of  his  know^ledge  and  belief,  so  as 
to  preclude  a  second  suit  for  the  same  demand.'     One  of  the 

1  Miller  v.  C,  M.  &  St.  Paul  Ry.  Co.,  v.  Kellogg,  63  Mich.  105 ;  Stringer  v. 

58  Wis.  310;  Wetherwax  r.  Paine,' 2  Dean,  61  id.  196;  Miller  r.  Railway 

Mich.  555.  Co..  58  Wis.  313. 

2Simpsonn  McCarthy,  78  Cal.  175.  5  Smith  v.  Victoria  (Minn.).  56  N. 

^Rutledge  v.  Stribling,  26  111.  App-  W.  47.     This  was  held  with  reference 

353.  to  justices'  courts. 

*  Mackey  v.  Hyatt.  43  jMo.  App.  443 ;  **  Deering  v.  Warren,  1  S.  D.  35. 

Clark  V.  Miller,  88  Ky.  108 ;  Adams  "  Bond  v.  Patterson,  1  Blackf.  34 


102  ATTACHMENT    AFFIDAVIT.  [§  133. 

reasons  why  the  grounds  cannot  be  set  forth  equivocally  in 
the  affidavit  is  found  in  the  harsh  character  of  the  remedy  in- 
voked. Because  attachment  is  an  extraordinary  proceeding, 
permissible  only  in  consideration  of  the  danger  the  plaintiff 
fears  in  his  attempt  to  collect  his  dues,  the  law  granting  him 
the  writ  to  seize  before  judgment  should  be  strictl}'^  construed, 
and  all  liability  of  oppressing  the  alleged  debtor  should  be 
carefully  avoided.  If  the  defendant  is  a  non-resident,  or  an 
absconding  debtor,  or  one  who  is  fraudulently  disposing  of 
his  property,  an  affiant  alleging  him  to  be  any  one  of  these 
must  make  the  allegation  with  certainty.  Swearing  to  infer- 
ences —  not  to  facts  —  will  not  warrant  the  issue  of  the  writ.^ 
The  affiant  may  be  in  error  as  to  the  facts  stated  in  good  faith, 
but  the  falsity  of  the  grounds  would  not  cut  off  intervening 
creditors  who  subsequently  attach.-  Even  though  the  plaint- 
iff, as  deponent,  is  mistaken  in  his  facts,  the  writ  will  issue,  as 
in  all  cases,  when  they  are  sworn  positively.  It  is  necessary 
that  the  grounds  of  attachment  be  stated  substantially  and  in- 
telligently.^ No  writ  should  be  issued  when  they  are  stated 
vaguely  in  the  affidavit,* 

AVhen  breach  of  contract  is  the  ground,  the  plaintiff  should 
swear  to  the  breach  in  his  affidavit  for  attachment,^  and  show 
the  specific  amount  of  damage.^ 

§  133,  Claim. —  If  the  requirement  is  that  the  plaintiff  must 
state  the  character  of  his  claim,  he  may  do  so  in  brief  and  or- 
dinary language,  without  the  particularity  necessary  to  plead- 
ing, provided  the  characterization  conveys  the  idea  without 
equivocation,^ 

Often  it  occurs  that  a  conscientious  affiant  must  qualify  his 
statement  by  some  explanation.     He  may  rightly  do  so  if  he 

1  Howell  V.  Muskegon  Judge,  88  396 ;  Stein  v.  Levy,  id,  381 ;  First  N. 
Mich.  361 ;  Deimel  v.  Scheveland,  16  Bank  v.  Swan,  3  Wyo.  356 ;  Kerch- 
Daly,  34;  National  Broadway  Bank  ner  u  McCormac,  25  S.  C.  461;  Kel- 
V.  Barker,  61  Hun,  625,  dMinguislir  ley  r.  Force,'  16  R.  I.  628. 
ingHaebler  v.  Bernharth,  115  N.  Y,  •'^  Smadbeck  v.  Sisson,  66  How.  Pr, 
459.  220.     See  Riley  v.  Sisson,  id.  224. 

'■^Orr  Shoe  Co.  u  Harris,  82  Tex.  « Golden   Gate   Co.  v.  Jackson,  13 

273.  Abb.  New  Cases,  476. 

3  Tanner,  etc.  v.  Hall,  22  Fla.  391.  "^  Holstein  Manuf.  Co.  v.  Lea,  18  Ga. 

nieinhard  v.    Neill,    85   Ga.    265;  647;    Force  v.  Hubbard,  26  id.  289; 

Mechanics',  etc.  v.  Loucheim,  55  Hun,  Theirman  v.  Vahle,  32  lud.  400. 


§  loi.]  CEKTAINTY.  103 

does  not  impair  the  certainty  of  the  required  oath.^  It  would 
not  do  to  say  that  the  defendant  is  indebted  in  a  sum  approxi- 
mating a  thousand  dollars,-  but  it  would  be  sufficient  to  state 
the  debt  as  exceeding-  a  thousand  dollars.^  In  the  latter  case 
the  oath  will  be  deemed  certain  in  its  averment  to  the  amount 
of  a  thousand  dollars,  while  in  the  former  it  is  wholly  in- 
definite. 

Conscientious  explanations  should  be  respected  and  gra- 
ciously received  and  considered  by  the  court,  since  they  ma}'' 
give  greater  assurance  of  the  truth  of  the  affidavit  than  a 
formal  following  of  the  statute  words  would  give.  It  is  better 
that  the  plaintiff  lose  his  application  than  that  he  should  suc- 
ceed by  a  positive  averment  which,  in  conscience,  he  ought 
not  to  have  made  without  qualification. 

§  134.  Consistency. —  That  the  debtor  has  assigned  his  prop- 
erty and  is  about  to  assign  it  was  held  not  necessarily  incon- 
sistent;* that  he  has  disposed  of  his  property  and  is  about  to 
dispose  of  the  rest,  to  defraud  the  plaintiffs,  was  held  a  con- 
sistent and  sufficient  averment;^  but  the  distinction  is  plain 
between  the  charge  that  the  debtor  has  disposed  and  is  about 
to  dispose  of  all  his  property.^  Where  the  statute  authorizes 
attachment  when  the  debtor  has  disposed  of  his  property  to 
cheat  or  dela}''  his  creditors,  or  is  about  to  do  so,  if  the  plaint- 
iff alleges  the  latter  only,  it  is  error  for  the  court  to  charge 
that  he  must  prove  the  former.'^    Though  several  be  laid,  proof 

1  Lampkin   v.    Douglass,    27   Hun,  that  the  statement  of  the  debt  must 

517.     Though   the   statute    required  be  that  it  is  over  and  above  any  set- 

the  plaintiflf  to  swear  that  he  was  not  off,  the  quali6cation  just  mentioned 

indebted  to  the  defendant  "in  any  would  be  fatal, 

wise  or  upon  any  account  whatevei',"  ~  Lathrop  v.  Snyder,  16  Wis.  293. 

the  court  held  an  affidavit  good  in  3  ]sTg]sQ,^  ^.    Munch,  23  Minn.  229; 

which  the  plaintiff  admitted  his  in-  Flower  v.  GrifHth,  12  La.  345. 

debtedness  in  "some  small  amount,"  ^Nelson  v.  Munch,  23  Minn,   229, 

contracted  since  the  note  sued  upon  ■  Contra,   Kegel  v.  Schrenkheisen,  37 

was  given.     Turner  v.  McDaniel.    1  Mich.    174.     See    Hills  v.  Moore,   40 

McCord,  552.     An  affidavit  was  sus-  id.  210. 

tained    though    the    plaintiff,    after  SAuerbach  r.  Hitchcock,  28  Minn, 

stating  a  positive  sum   as   the  debt  73;  Smith  r.  Baker,  80  Ala.  318. 

due  him,  qualified  it  by  admitting  ^  Blass  v.  Lee,  55  Ark.  329. 

that  it  might  be  subject  to  set-off.  "  AVaples   Platter  Co.    v.   Low,   54 

Holstein  JIanuf.  Co.  v.  Lea,  18  Ga.  Fed.    93.     See    Dawley    v.    Sherwin 

647.    However,  if  the  statute  requires  (S.  D.),  59  N.  W.  1027. 


104  ATTACHMENT    AFFIDAVIT.  [§  135. 

of  one  good  ground  is  sufficient ;  ^  yet  it  has  been  held  that 
faihire  to  prove  that  the  defendant  was  about  to  abscond,  and 
that  he  had  frequently  disposed  of  his  propert}^  to  defraud  his 
creditors,  was  fatal,  though  it  was  fully  established  that  the 
debt  sued  on  was  fraudulently  contracted.^  The  statement 
that  the  defendant  has  "hastil}^  removed  his  live-stock  to 
another  state  for  the  purpose  of  hindering  and  delaying  the 
plaintiff  in  the  collection  of  his  debt"  was  not  deemed  such 
an  averment  as  would  justify  attachment.^  The  allegation 
that  the  debtor  has  made  a  pretended  or  simulated  sale  to 
avoid  creditors  is  sufficient  ground.*  An  averment  that  the 
debtor  has  disposed  of  property  to  defraud  any  of  his  cred- 
itors is  sufficient,  where  the  statute  provides  in  general  terms 
that  attachment  may  issue  if  the  debtor  has  "  assigned,  dis- 
posed of,  concealed,  etc.,  any  of  his  property  to  defraud  his 
creditors."  * 

YIII.   Alternation. 

§135.  When  allowed. —  The  requirement  of  certainty  does 
not  altogether  exclude  alternate  allegations.  While  it  would 
be  uncertain  should  the  statement  be  that  the  debtor  is  either  a 
non-resident  or  is  a  resident  now  absent  from  the  state;  that 
he  is  an  absconding  debtor  or  is  concealing  his  property  to 
avoid  execution,  it  would  not  be  uncertain  to  state  that  the 
debt  sued  upon  is  one  of  contract  express  or  implied,  where 
the  statute  requires  oath  that  the  sum  due  is  upon  contract 
express  or  implied ;  for  the  purpose  of  the  legislator  was  to 
confine  attachments  to  suits  upon  contract,  and  such  affidavit 
is  a  suflRcient  compliance  with  the  law,  though  there  is  alter- 
nation.**  In  a  petition  or  declaration  the  contract  must  be 
stated  without  such  alternation ;  but  the  niceties  of  pleading 
are  not  essential  to  an  affidavit.   Yet  even  in  pleading  in  civil 

1  Strauss  v.  Abraham,  33  Fed.  310.  Michigan,  §  7987 ;  Allen  v.  Kinyon, 

2Dumay  u  Sanchez,  71  Md,  508.  41  Mich.  281. 

3Craigmiles  v.  Hays,  7  B.  J.  Lea,  ^Klenk  v.  Schwalm,  19  Wis.  Ill; 

720.     See  Elliott  u  Heath,  32  Mo.  App.  Hawley  u  Delmas,  4  Cal.  195;  Hop- 

579.  kini  v.  Nichols,  32  Tex.  206;  White 

4  Haralson  v.  Newton,  63  Ga.  163.  v.  Lynch,  26  id.  195.     See  Garner  v. 

6  Howell's  Annotated   Statutes  of  Burleson,  id.  348,  and  Culbertson  V. 

Cabeeu,  29  id.  247. 


§  135.]  ALTERNATION.'  105 

cases,  facts  ma}^  soraetimes  be  stated  in  the  alternative  if 
either  is  sufficient  to  establisii  a  proposition.  Even  in  libels 
for  the  forfeiture  of  property,  stating  a  charge  in  the  alter- 
native may  hold  good  if  either  alternative  constitutes  a  ground 
for  which  the  thing  libeled  may  be  forfeited.^  The  particu- 
larity of  criminal  indictments  is  not  deemed  essential.  The 
reasoning  is  that  the  requirement  of  the  law  is  met,  which- 
ever of  the  alternatives  may  be  true,  provided  both  are  good 
allegations.  The  same  reasoning  may  be  applied  to  some  re- 
quirements of  the  attachments  laws,  respecting  affidavits, 
though  inapplicable  to  others.  If  a  statute  limits  attachments 
to  suits  upon  contract  express  or  implied,  the  affidavit  may 
state  the  debt  to  be  upon  an  express  contract ;  it  may  state  it 
to  be  upon  an  implied  contract ;  it  may  state  it  to  be  upon  an 
express  or  implied  contract.  But  it  would  notjdo  to  say  that 
the  debt  is  in  the  sum  of  $100  or  SI, 000 ;  that  the  defendant 
is  a  non-resident  or  an  absconding  debtor;  that  he  is  conceal- 
ing himself  or  his  property  to  avoid  creditors,  etc.  Thus,  even  if 
both  of  such  allegations  be  good  grounds, —  either  capable  of 
standing  alone, —  it  has  been  held  that  they  cannot  be  coupled 
disjunctively  without  impairing  the  legality  of  the  affidavit.'-' 
So  the  alternation  "  Has  disposed  or  is  about  to  dispose  of  his 
property  to  defraud  creditors,"  is  bad,  but  may  be  amended.^ 
"  Has  assigned  and  is  about  to  assign,  with  intent  to  defraud," 
was  sustained.*  A  plaintiff  swore  in  his  affidavit  for  attach- 
ment that  the  defendant  "is  a  non-resident,  or  has  removed 

1  The  Emily  and  Caroline,  9  Wheat.  Garner  v.  Burleson,  26  id.  348 ;  Cul- 
381 ;  The  Caroline,  7  Cr.  500,  note ;  bertson  %\  Cabeen,  29  id.  247 ;  Allen 
United  States  v.  The  Little  Charles,  v.  Fleming,  14  Rich.  (S.  C.)  196  :  Hau-- 
1  Brock.  348;  The  Merino,  9  Wheat,  ley  v..  Delmas,  4  Cal.  195;  Wilke  v. 
391;  The  Samuel,  1  id.  14;  Jacob  Cohn,  54  id.  212;  Ronaldson  r.  Ham- 
V.  United  States,  1  Brock.  520 ;  Par-  ilton,  5  La.  Ann.  203 ;  Elam  v.  Barr, 
sons  on  Siiippiug  and  Admiralty,  11  id.  622;  Hickman  i*.  Fleuoriken, 
vol.  2,  p.  383.  12  id,  268;  Rogers  v.  Ellis.  1  Handy, 

2  Kegel  V.  Schrenkheisen.  37  Mich.  48 ;  Jewel  v.  Howe,  3  Watts  (Pa.), 
175 ;  Blum  f.  Davis,  56  Tex.  426 ;  Car-  144. 

penter  v.  Pridgen,  40  id.  32 ;  Guile  v.  3  Rothchild  v.  Mooney,  59  Hun,  622. 

McNanny,    14  Minn.   520;    Stacy   v.  Co???|jare  Goodbar  u.  Bailey,  57  Ark. 

Stichton,  9  Iowa,  399;  Devall  v.  Tay-  611,  with  Durr  v.  Hervey,  44  id.  302. 

lor,  Cheves.  5;  Wray  r.  Gilmore,  1  •*  Detroit  Free  Press  Co.  v.  Associa- 

Miles,  75  ;  Shipp  v.  Davis.  Hardin.  65  ;  tion,  64  Mich.  605. 
Hopkins    i'.   Nichols,   22    Tex,   206; 


106  ATTACHMENT   AFFIDAVIT.  [§  136. 

property  or  is  about  to  remove  property  with  intent  to  de- 
fraud/' etc.  As  the  statute  of  the  state  where  the  affidavit 
was  made  lays  down  these  grounds  alternately,  the  affidavit 
was  sustained.^  But  when  the  statute  does  not  so  express 
the  grounds,  alternation  in  the  affidavit  is  held  bad  and  the 
writ  should  be  denied.^  And  even  though  the  statute  be  writ- 
ten as  above  expressed,  alternation  in  the  affidavit  should  not 
be  allowed  if  the  evident  intent  of  the  legislature  was  to  lay 
down  separate  grounds.^  An  alternative  denial  in  an  answer 
that  the  defendant  has  assigned,  disposed  of  or  concealed  his 
property  is  good  pleading.^  Whenever  two  grounds  are  thus 
disjoined,  and  one  of  them  is  bad,  the  affidavit  cannot  be 
acted  upon ;  ^  but  it  is  not  fully  settled  that  two  good  grounds 
may  not  be  legally  coupled  by  the  disjunctive  or  in  an  affida- 
vit; indeed,  the  affirmative  has  been  judicially  maintained.'' 

§  130.  Unity  of  idea. — The  use  of  the  disjunctive  is  allow- 
able in  affidavits,  if  the  statute  uses  it  in  such  a  sense  as  to 
express  but  one  ground.  For  instance,  if  the  grounds  are 
numbered  in  the  statute,  and  under  one  number  is  placed  the 
ground,  If  the  debtor  absconds  or  concecds  himself:  may  not  the 
affiant  swear  that  his  debtor  has  absconded  or  is  concealing 
himself?  It  is,  under  some  circumstances,  the  only  honest 
form   of  oath  that  the  plaintiff  can  take  with  regard  to  his 

1  Penniman  v.  Daniel,  90  N.  C.  154.  Hagood  v.  Hunter,  1  McCord,  511 ; 
So  in  other  states:  Kuhn  v.  Embr}%  Barnard  v.  Sebre,  3  A.  K.  Marshall, 
35  La.  Ann.  488;  Societe,  etc.  v.  Mil-  151;  Dunnenbaumu.  Schram,  59  Tex. 
liken,  135  U.  S.  304,  clistingidshing  281. 

Hopkins  v.  Nichols,  22  Tex.  206.  •*  Stewart  v.  Cabanne,  16  Mo.  App. 

2  Dunnenbaum  v.  Schram,  59  Tex.  517 ;  Penniman  v.  Daniel,  90  N.  0. 
281 ;  Bishop  v.  Fennerty,  46  Miss.  154 ;  Sandheger  v.  Hosey,  26  W.  Va. 
570 ;  Dickenson  v.  Cowley,  15  Kan.  221 ;  Tessier  v.  Englehart,  18  Neb.  167 ; 
269 ;  People  v.  Recorder,  6  Hill,  429.  Irviu  v.  Howard,  37  Ga.  18 ;  Howard 

3  Braf  man  v.  Asher,  78  Ga.  32 ;  v.  Oppenheimer,  25  Md.  350 ;  Dean  v. 
Duitruff  r.  Tuthill,  62  Hun,  571 ;  Oppenheimer,  id.  368 ;  Smith  v.  Fos- 
Johnson  v.  Buckel,  65  id.  601;  Win-  ter,  3  Coldw.  (Tenn.)  139;  Goss  v. 
ters  V.  Pearson,  72  Cal.  553 ;  Pearre  Gowing,  5  Rich.  (S.  C.)  477.  Contra, 
V.  Hawkins,  62  Tex.  435  (see  Cleve-  Haygood  v.  Hunter,  1  McCord  (S.  C), 
land  V.  Boden,  63  id.  103);  Good-  511;  Wood  v.  Wells,  2  Bush,  197; 
year  Rubber  Co.  v.  Knapp,  61  Wis.  Blum  v.  Davis,  56  Tex.  423 ;  Hardy 
103;  Miller  v.  Munson,  34  id.  579;  v.  Trabue,  4  Bush,  644;  Klenk  v. 
Whitney  v.  Brunette,  15  id.  61.  Schwalm,  19  Wis.  Ill ;  Jones  v.  Peck 

4FirstN.  Bank  u  Steele,  81  Mich.  93.     (Mich.),  59   N.  W.   659;  Emerson  v. 
5  Davis  u.   Edwards,  Hardin,  342;     Spring  Co.  (Mich.),  58  N.  W.  659. 


§  137.]  ALTERNATION.  107 

debtor's  disappearance.  "When  the  leading  idea  of  a  statute 
ground  for  attachment  is  the  avoidance  of  process  by  ab- 
sconding, the  means  of  avoidance  may  be  sworn  to  in  the 
alternativej  so  may  incidental  facts  respecting  other  leading 
grounds.^ 

Inconsistent  grounds,  when  copulativeh'^  joined,  are  liable 
to  the  same  objection  to  which  they  would  be  exposed  if  ex- 
pressed alternately ;  such  as  the  statements  that  the  debtor 
has  disposed  of  certain  property  to  defraud  creditors,  and  that 
he  is  about  to  dispose  of  the  same  property  for  that  purpose, 
since  it  is  not  possible  that  both  assertions  can  be  true.- 

§137.  Debt  stated. —  Xothing  more  positively  requires  un- 
equivocal statement  than  the  amount  of  the  indebtedness  sued 
upon ;  yet  when  a  plaintiff  had  sworn  that  the  defendants  "are 
or  will  be  justly  indebted,"  he  was  allowed  to  amend  by  strik- 
ing out  the  words  "or  will  be."*  "Without  such  emendation 
the  sworn  allegation  of  indebtedness  would  doubtless  have 
been  fatally  defective  by  reason  of  the  alternation  which  coupled 
a  good  cause  of  action  with  one  totally  irrelevant.  One  can- 
not be  sued  because  he  will  be  indebted,  even  in  states  where 
there  is  no  necessity  of  averring  that  the  debt  is  due  in  order 
to  conserve  property  to  satisfy  it  eventually;  and  where  the 
maturity  of  the  debt  is  an  essential  averment,  no  valid  writ 
can  be  issued  without  such  allegation  in  the  affidavit.  To 
aver  that  defendants  "  are  or  will  be  indebted  "  is  not  to  aver 
that  they  now  are  so ;  and  if  not  amended  the  affidavit  would  be 
fatally  defective.  An  affidavit  that  the  debtor  "fraudulently 
contracted  the  debt  or  incurred  the  obligation,"  and  stating 
the  debt  as  arising  "  by  express  contract  and  by  implied  con- 
tract," has  been  held  good.'* 

1  Parsons  v.  Stockbridge,  42  lud.  104 ;  Bosbyshell  v.  Emanuel,  12  S.  & 

121;  Stokes  v.  Potter.  10  R.  I.  570;  M.  63;  Wells  v.  St.  Dizier,  9  La.  Ann. 

Van  Alstyne  v.  Erwine,  1   Kernan,  119;  Conrad  n  McGee,  9  Yerger,  428 ; 

331 ;  McCraw  v.  Welch,  2  Col.  T.  284 ;  Goss  v.  Gowing,  5   Richardson,  477 ; 

Klenk    v.    Schwalm,    19    Wis.    Ill ;  Hopkins  v.  Nichols,  22  Tex.  206. 

Brown  v.  Hawkins,  65  N.   C.   645 ;  2  Hinds  v.  Fagebank,  9  Minn.  68 ; 

Johnson  r.  Hale,  3  Stewart  &  Porter,  Kegel  v.  Schrenkheisen,  37  Mich.  174. 

331 ;  Cannon  v.  Logan.  5  Porter  (Ala.),  3  Tomniej-  v.  Gamble,  66  Ala.  469. 

77;  Commercial  Bank  v.  Ullman,  10  *  Emerson  r.  Detroit,  etc.  Co.  (Mich.), 

S.  &  M.  411 ;  Boothe  v.  Estes,  16  Ark.  58  N.  W.  659. 


lOS  ATTACHMENT    AFFIDAVIT.  [§§  138,   139. 

IX.  Amendments. 

§  138.  In  general. —  An  affidavit  may  contain  all  that  is 
required,  and  be  sufficient  for  the  purposes  of  a  jadgraent 
and  the  maintaining  of  the  court's  jurisdiction,  and  yet  be 
such  that  it  ought  to  be  rejected.  Not  on  grounds  connected 
especially  with  the  attachment  laws,  but  on  the  general  ground 
that  all  papers  presented  to  the  court  should  be  of  a  proper 
character.  Such  an  affidavit,  though  containing  all  required 
allegations,  may  be  disrespectful,  frivolous,  unseemly;  it  may 
be  ridiculously  prolix,  tediously  circumstantial,  or  otherwise 
objectionable,  so  that  the  court  may  direct  its  modification ; 
and  upon  the  plaintiff's  refusal  to  change  it,  the  court,  in  the 
exercise  of  its  right  to  maintain  order  and  discipline,  may  de- 
cline to  allow  it  to  be  filed. 

§  139.  "^he  superfluous  words  of  a  statute  may  be  safely 
omitted  in  making  the  affidavit.  Swearing  that  the  defend- 
ant is  indebted  is  equivalent  to  swearing  that  he  is  "justly 
indebted,"  except  where  the  statutes  prescribe  the  quoted 
words.  All  that  it  is  necessary  to  express  is  the  meaning  of 
the  statute.^  Words  that  would  seem  redundant  in  the  statute 
may  be  of  evident  importance  in  an  affidavit.  The  courts 
will  judge  of  their  necessity ;  and  it  is  better  to  retain  all  the 
adjectives  and  adverbs  of  the  statutory  requirement.  How- 
ever, they  are  often  non-essentials.- 

In  drawing  an  affidavit  one  had  better  say  too  much  than 
too  little,  since  mere  surplusage,  when  not  inconsistent  with 
required  averments,  will  not  invalidate  them.^  Mere  clerical 
mistakes,  such  as  the  omission  of  a  word  easily  supplied  in 
making  sense  of  the  context  (such  as  the  word  '«'  is,"  when 
omitted,  being  part  of  the  verb  "is  indebted"),  djD  not  invali- 

iQath  that  plaintiff  is  "justly  en-  Martin,!  Ark.  886;  Hughes  v,  Stin- 

titled  to    recover,"   held    necessaiy.  nett,  9  Ark.  211. 

Reed  v.   McCloud,   38  W.  Va.   701;  3  Curtis  v.  Moore,  3  Minn.  39;  Mc- 

W.  Va.  Code,  ch.  106,  §  1.  Mahon  v.    Boardman,  29   Tex.  170 ; 

■2  Oliver  u.  Town  &  Watson,  28  Wis.  Nelson  v.  Munch,  23  Minn.  329; 
328 ;  Mairet  v.  Marriner,  34  id.  583 ;  Pitkins  v.  Boyd,  4  Greene  (la.),  255 ; 
Trowbridge  v.  Sickler,  42  id.  417;  Anter  v.  Steamboat,  34  Miss.  269; 
Creasser  v.  Young,  31  Ohio  St.  57;  Commercial  Bank  v.  UUman,  18  id. 
Drake  v.  Hager,  10  Iowa,  556;  Liven-  411;  Lee  v.  Peters,  9  id.  503;  Tom- 
good  V.  Shaw,  10  Mo.  272 ;  Kennedy  mey  v.  Gamble,  66  Ala.  469. 
V.  Morrison,  31  Tex.   207 ;  Hughes  v. 


§  ^m 


AMENDMENTS. 


109 


date  the  affidavit.^  So,  the  substitution  of  one  word  for  another 
Avill  not  be  fatal  to  the  instrument  if  the  sense  can  be  readily 
ascertained ;  -  such  as  the  word  "  goods  "  for  "  property."  ^ 

There  is  no  necessity  for  such  nicety  of  exjiression  as  is  re- 
quirsd  in  old  forms  of  pleading.  If  defendants  are  averred, 
in  the  plural,  to  be  non-residents,  the  affiant  may  omit  to  add, 
"  nor  is  either  of  them  a  resident,"  etc.^  If  the  statute  re- 
quires oath  that  the  claim  is  just,  equivalent  words  will  an- 
swer;^ so,  if  it  requires  the  plaintiff  to  swear  that  he  believes 
he  ought  to  recover,  he  may  swear  that  the  debt  is  due.*' 

§  140.  Omissions. —  The  omission  of  averments  positively 
required  by  the  statute  will  not  invalidate  the  affidavit,  if  the 
requirement  of  such  averments  is  unconstitutional.^ 

It  is  always  safe  to  omit  what  is  presumed  in  the  absence 
of  assertion,  such  as  the  fact  that  the  defendant  is  an  adult.^ 
Redundancy  is  not  a  fatal  defect.  One  part  of  the  instrument 
may  correct  another.  A  slight  error  in  the  affiant's  name,  in 
the  recital,  is  cured  by  his  signature.^     If  his   name  is  not 


1  Buchanan  v.  Sterling.  63  Ga.  227. 
Compare  City  Bank  v.  Flippen,  66 
Tex.  610.  ^'ee  Huffman  v.  Hardeman 
(Tex.),  1  S.  W.  575. 

2  Levy  V.  Elliott,  14  Nev.  435;  Mc- 
Clanahan  v.  Brack,  46  Miss.  246; 
Buclianan  v.  Sterling,  63  Ga.  227. 

3  Hafley  v.  Patterson,  47  Ala.  271. 

4  Franklin  v.  Claflin,  49  Md.  24. 

5  Ludlow  11.  Ramsey,  11  Wall.  581; 
Grutman  v.  Virginia  Iron  Co.,  5  W. 
Va.  22. 

6  Sleet  V.  Williams,  21  Qhio  St  82. 
"Ross  V.   Jenkins,  7  W.  Va.  284; 

Lynch  v.  Hoffman,  id.  553,  578. 

8  Wentzler  v.  Ross,  59  How.  Pr.  397. 

9  Kahn  v.  Herman,  3  Ga.  266 ;  Hun- 
ter V.  Peaks,  74  Me.  363.  Though 
there  be  two  plaintiffs,  their  repre- 
sentation by  a  singular  pronoun  does 
not  vitiate  the  affidavit.  Faii'banks 
V.  Lorig  (Ind.  App.).  29  N.  E.  452.  If 
there  are  two  defendants,  an  affidavit 
averring  that  it  is  "not  to  harass  tlie 
defendant"  is  insufficient.  Perrill  r. 
Kauffmau,    72    Tex.   214;  Gunst    v. 


Pelham,  74  id.  586.  Two  plaintiffs 
suing,  the  affidavit  by  one  of  them 
that  the  "plaintiffs"  are  apprehen- 
sive that  they  u-ill  lose  their  claim 
unless  attacliment  issue  is  not  ob- 
jectionable. Williams  v.  Stock  Board 
(Mich.),  57  N.  W.  1089,  distinguishing 
Weimeister  v.  Manville,  44  Mich.  408. 
A  slight  variance  between  the  writ 
and  the  affidavit  in  a  partnership 
name  is  unimportant.  Johnson  v. 
Smith,  83  Ga.  779.  If  the  word  or  words 
omitted  can  be  spared  without  affect- 
ing the  sense,  the  affidavit  will  be 
sustained.  Jansen  v.  Mundt,  20  Neb. 
320 ;  Clark  v.  Miller,  88  Ky.  108.  If 
the  omitted  word  is  suggested  by  the 
written  part,  the  blank  may  be  filled, 
or  the  affidavit  may  be  good  without 
the  filling.  Stewart  v.  Cabanne,  16  Mo. 
App.  517;  De  Bebian  v.  Gola,  64  Jld. 
262.  Not  only  slight  omissions,  but  all 
errors  which  do  not  affect  the  sense, 
may  be  either  cured  by  amendment 
or  disregarded.  Whipple  r.  Hill,  86 
Neb.   720;  Jansen   v.    Mundt,   20  id. 


110  ATTACHMENT    AFFIDAVIT.  [§  1-11. 

\ 

stated  in  the  body  of  the  affidavit,  the  fault  is  not  serious. 
But  when  the  plaintiff's  christian  name  in  his  affidavit  differed 
materially  from  that  in  the  petition,  the  inconsistency  was  not 
excusable.^  The  essential  matter  is  that  the  affidavit,  as  a 
whole,  shall  show  that  it  was  made  by  the  party  whose  oath 
it  purports  to  be,  so  as  to  render  him  responsible  for  the 
sworn  statement.  He  certainly  cannot  become  entitled  to  the 
benefit  of  the  affidavit  if  it  shows  anything  less.  But  it  w^as 
held  sufficient,  in  one  instance,  when  it  did  not  name  the 
plaintiff  or  defendant  as  such,  was  not  entitled  in  the  suit  and 
not  attached  to  the  original  papers.^  Ordinarily  it  should 
have  the  title  of  the  suit  placed  at  the  top,  which  may  be  re- 
ferred to  as  "  the  above-entitled  cause  "  in  the  body,  without 
further  naming  the  parties.^ 

§  141.  It  has  been  held  that  the  omission  of  the  name  of 
one  of  the  plaintiffs  in  the  petition  is  supplied  by  the  signa- 
ture to  the  affidavit  and  bond,  when  the  plaintiffs  constitute 
a  firm  and  the  signature  is  that  of  the  firm  name.* 

The  omission  of  the  affiant's  signature  is  a  serious,  though 
not  everywhere  held  to  be  a  fatal,  defect,^  for  it  may  be  signed 
after  filing  by.  way  of  amendment,*^  and  the  jurat  may  be  at- 
tached after  the  affidavit  has  been  filed,^  both  by  leave  of 
court.     And  the  seal,  may  be  attached  to  the  jurat  by  way  of 

320.     See  Wentworth  v.  Sawyer,  76  Weis  v.  Chipman,  3  Tex.  Civ.  App. 

Me.  434 ;  Ruth  v.  Green  Bay,  etc.  R.  106.     It  has  been  held  that  the  names 

Co.,  37  Wis.  344;  Burgess  v.  Stilt,  2  of  the   members  of  a  firm   may  be 

How.  Pr.  401 ;  Kinney  v.  Herald,  17  supplied    by    way    of    amendment. 

Ark.  397;  Cheadleu.  Riddle,  6  id.  480.  Emerson  v.  Detroit,  etc.  Co.  (Mich.), 

1  Focke  V.  Hardeman,  67  Tex.  173.  58  N.  W.  659. 

'^  Beebe    v.  Morrill,  76    Mich.  114.  &  In  Missouri  the  error  is  fatal,  and 

See  Harris  v.  Lester,  80  111.  307.  the  court  has  no  jurisdiction  of  the 

3  Gray  v.  Steedraan,  63  Tex.  95 ;  attachment  suit  under  such  an  affi- 
West  V.  Woolfolk,  21  Fla.  189.  davit,  and  a  deed  to  a  purchaser  at  a 

4  Barriere  v.  McBean,  12  La.  Ann.  sale  under  a  judgment  in  such  case 
493.  In  Foran  v.  Johnson,  58  Md.  is  void.  Hargadine  v.  Van  Horn,  73 
145,  it  was  held  that  the  mistake  of  Mo.  370.  Contra,  Bates  v.  Robinson, 
inserting  "  James  &  Co."  instead  of  8  Iowa,  318 ;  Hitsman  v.  Garrard,  16 
the  firm  name,  "  James  Foran  &  Co.,"  N.  J.  L.  124. 

in  the  affidavit,  was  not  fatal,  since  ^  Fortenheim  v.  Claflin,  47  Ark.  49 ; 

other   parts  of  the  instrument  ren-  Hyde  v.  Adams,  80  Ala.  111. 

dered  the  meaning  certain.    "  Plaint-  "^  Id. 
iff"   for   "plaintiffs"  is  immaterial. 


§§  142,   143.]  AMENDMENTS.  Ill 

amendment.^  A  blank  in  the  clerk's  certificate  may  be  filled 
by  inserting  the  date,  if  the  attachment  shows  what  the  date 
is,  and  the  correction  may  be  by  motion.^  It  is  not  like  the 
omission  to  state  the  grounds  of  the  action,  for  it  does  not 
affect  the  jurisdiction,  while  failure  to  aver  the  grounds  is 
fatal  and  irremediable  because  it  does  affect  the  jurisdiction  * 
and  cannot  be  remedied  after  the  issue  of  the  writ.*  The 
general  rule  is  that  whatever  is  statutorily  required  to  the 
validity  of  the  attachment  cannot  be  omitted  without  fatality. 
The  venue  is  necessary  to  prove  the  administration  of  the 
oath,  and  it  should  not  be  omitted ;  ^  but  it  has  been  held  that 
the  omission  may  be  supplied.'^ 

§  142.  Variances. —  Slight  variance  between  the  petition 
and  the  affidavit  may  sometimes  be  explained  by  comparing 
the  one  with  the  other,  when  the  discrepancy  does  not  amount 
to  a  substantial  defect.  Even  if  the  amount  of  the  claim  is 
slightly  understated  in  the  affidavit,  the  error  will  not  prove 
fatal  when  the  writ  follows  the  affidavit  and  not  the  petition 
averring  a  greater  sum  to  be  due.'  If  the  affidavit  corresponds 
with  the  petition  as  to  parties  and  amount,  and  both  are  filed 
together  with  the  bond,  there  is  sufficient  identification.^  So 
when  the  affidavit  is  annexed  to  the  writ.^  But  variance  be- 
tween the  affidavit  and  petition,  as  to  the  time  of  the  ma- 
turity of  the  note  sued  upon,  is  fatal. ^^  Also  variance  as  to 
the  names  of  the  firm-plaintiff.^^ 

§  143.  Fatal  defects. —  When  an  affidavit  is  fatally  defective 
the  court  should  disregard  it;  but  in  case  the  court  should 
ill-advisedly  issue  the  writ,  the  best  course  for  the  plaintiff  to 
])ursue  is  to  abandon  it  and  begin  his  proceedings  anew.     No 

1  Whittenberg  v.  Lloyd,  49    Tex.  5  Rudolph  v.  McDonald,  6  Neb.  163. 

633.  See  McCartney  v.  Branch   Bank,  3 

-'-  Brack  v.   McMahon,  61   Tex.   1 ;  Ala.  709. 

Anderson  v.  Coal  Co.,  12  W.  Va.  526.  6  Wiley  v.  Bennett,  9  Baxt.  581. 

^  Zeregal  v.  Benoist,  33  How.  Pr.  ^  Stewart  v.  Heidenheiraer,  55  Tex. 

129.    See  many  citations  in  chapter  644. 

on  jurisdiction.  ^  Munzeheimer  v.  Heinze,  79  Tex. 

•»  Wright    V.    Smith,   66  Ala.  545;  318. 

Johnson  v.  Hannah,  id.  127.     But  see  ^  Beebe  v.  Morrell,  76  Mich.  114. 

Day    V.   Bennett,    18    N.   J.  L.  287 ;  lo  Moore  v.  First  N.  Bank,  82  Tex. 

Sliaddock  v.  Marsh,  21   id.  434,  and  537. 

Irwin  V.  Howard.  37  Ga.  18,  respect-  ^^  Focke  v.  Hardeman,  67  Tex.  173. 

lug  the  amendability  of  such  defect.  See  Foran  v.  Johnson,  58  Md.  144. 


112  ATTACUMEXT   AFFIDAVIT.  [§  144. 

valid  judgment  can  be  based  upon  such  false  foundation;  no 
jurisdiction  can  be  acquired. 

Defects  in  the  affidavit  are  of  two  kinds:  those  which  affect 
the  jurisdiction  and  those  of  a  minor  character.  The  former 
may  be  urged  to  impeach  a  judgment  collaterally,  while  the 
latter  can  be  taken  advantage  of  in  the  case  only,  during  its 
progress  before  the  court  of  the  first  instance  or  on  a))peal. 
Where  a  statute  requires  the  plaintiff  to  swear  to  the  ground 
upon  which  the  attachment  is  issued,  and  he  fails  so  to  swear, 
the  defect  is  jurisdictional;  but  where  the  requirement  is 
"  that  certain  facts  shall  appear  by  affidavit  to  the  satisfaction 
of  the  court  or  judge  "  before  an  order  for  publication  notice 
to  a  non-resident  debtor  can  be  issued,  "  defects  in  such  affi- 
davit can  only  be  taken  advantage  of  on  appeal,  or  by  some 
other  direct  proceeding,  and  cannot  be  urged  to  impeach  the 
judgment  collaterally."^  That  is,  defects  not  jurisdictional; 
for  though  the  court  is  to  be  the  judge  of  what  is  proof  to  its 
satisfaction,  it  cannot  acquire  jurisdiction  by  accepting  an  affi- 
davit omitting  an  essential  fact  —  for  instance,  the  debtor's 
non-residence,  when  that  is  the  ground ;  or  his  absconding, 
when  the  plaintiff  proceeds  upon  that ;  nor  can  the  oath  to 
the  indebtedness  be  omitted.  It  has  been  held  that  an  affi- 
davit, '•  though  wholly  insufficient,"  may  be  amended  after 
the  issue  of  the  writ.-  But  the  court  must  have  acquired  ju- 
risdiction before  it  can  make  an  order  to  amend.  If  publica- 
tion has  been  made  after  writ  issued  on  an  affidavit  insuffi- 
cient, new  publication  should  be  made  after  the  amendment.'^ 
Amendment  has  been  allowed  to  fix  the  date  of  the  maturity 
of  the  debt  more  definitely  after  the  issue  of  the  writ ;  *  and 
even  after  the  levy  the  plaintiff  has  been  permitted  to  add  to 
his  declaratipn  that  he  sues  for  the  use  of  another.^  In  Kan- 
sas insufficient  affidavits  have  been  amended.^ 

§  144.  Amendable  defects. —  Where  amendment  of  the  affi- 
davit is  allowable,  the  plaintiff  should  not  fail  to  amend  as 

1  Pennoyer  v.  Neff,  95  U.  S.  721.  6  Baker  Wire  Co.  v.  Kingman,  44 

2  Penniman  v.  Daniel,  93  N.  C.  333 ;  Kan.  270 ;  Tracy  v.  Gunu.  29  id.  508 ; 
Brown  v.  Hawkins,  65  id.  645,  Wells  v.  Danford,  28  id.  487 ;  Fergu- 

3  Bank  v.  Blossom,  92  N.  C.  695;  son  v.  Smith,  10  id,  396;  Burton  v. 
Price  V.  Cox,  83  id.  261;  Church  v.  Robinson,  5  id,  287;  Bunu  v.  Pritch- 
Furniss,  64  id,  659.  ard,  6  la.  56.    See  Gans  v.  Beasley 

4  Donnelly  v.  Elser,  69  Tex.  282.  (N.  D.),  58  N,  W.  714. 

5  Epstiu  V.  Levensou,  79  Ga,  718. 


§  145.]  AMENDMENTS.  113 

soon  as  he  discovers  his  mistake;  and  this  should  be  before 
the  issuance  of  the  writ.  Amendment  is  not  universally 
allowable  after  the  writ  has  been  issued  —  some  of  the  states 
permitting  it  while  others  do  not.  Even  after  a  motion  to 
quash  the  proceedings  on  the  ground  of  defect  in  the  affidavit, 
the  plaintiff  is  allowed  to  amend,  under  certain  statute  pro- 
visions/ and  time  is  given  him  for  the  purpose.  Material  alle- 
gations cannot  be  supplied  upon  leave  granted  to  amend  as 
to  form.  The  general  rule  is  that  defects  of  form  are  amend- 
able :  defects  of  substance  incurable.- 

Should  an  attachment  be  dissolved  because  the  affidavit  is 
defective,  the  plaintiff  may  begin  anew,  as  a  matter  of  course ; 
but  to  dissolve  the  attachment  and  grant  leave  to  amend  the 
affidavit  is  generally  erroneous  (though  it  has  been  permit- 
ted''), and  the  error  may  avail  the  defendant  upon  appeal. 

If  the  affidavit  is  utterly  void  and  worthless  the  defendant 
may  have  a  valid  judgment  ultimately  rendered  against  him 
if  he  litigates  without  objecting  to  it;  but  the  judgment  would 
be  as  if  in  an  ordinary  suit.^ 

§  145.  Grounds  stated  in  an  amended  affidavit,  made  after 
the  issuance  of  the  writ,  must  not  be  those  first  existing  at 

1  Clarke  Banking  Co.  v.  Wright,  always  amendable  there  when  not 
37  id.  383;  Struthers  v.  McDowell,  void.  Hardin  v.  Lee,  51  Mo.  241; 
5  Neb.  491 ;  Irwin  v.  Bank,  6  Ohio  St.  Donnell  v.  Byern,  80  id.  382.  It  may 
81 ;  Bailey  v.  Nat.  Bank,  127  III.  333  be  amended  in  Nebraska  to  state 
{compare  Winters  v.  Pearson,  72  Cal.  venue  and  show  jurisdiction.  Stru- 
553);  Fitzpatrick  v.  Flannagan,  106  thers  n  McDowell,  5  Neb.  491.  And 
U.  S.  650 ;  Bunn  v.  Pritchard,  6  Iowa,  after  motion  to  quash  for  a  particu- 
56;  Magoon  v.  Gillett,  54  id.  54;  At-  lar  defect,  that  defect  may  be  cured 
kins  V.  Womeldorf,  53  id.  153 ;  Rog-  by  amendment.  Moline,  etc.  Co.  v. 
ers  V.  Cooper,  33  Ark.  406.  Curtis  (Neb.),  57  N.  W.  161.     Affida- 

2  Mudge  V.  Steinhart,  78  Cal.  34 ;  vit  may  be  amended  to  show  that 
Tanner  v.  Hall,  33  Fla.  .391 ;  Flexner  the  affiant  was  the  attorney  or  agent 
V.  Dickerson,  65  Ala.  129.  A  mistake  of  the  plaintiff.  Tracy  v.  Gunn,  29 
in  the  direction  of  an  affidavit,  being  Kan.  508.  But  it  need  not  be  amended 
not  one  of  substance,  is  amendable,  for  the  last  stated  purpose  if  the  rec- 
Warren  r.  Purtell,  63  Ga.  428.  In  ord  shows  him  to  be  agent  or  attor- 
Missouri  the  affidavit  maj'  be  ney.  Irwin  v.  Evans,  92  Mo.  472; 
amended  before  or  after  motion  to  Evans  v.  Lawson,  64  Tex.  199. 
quash.  R.  S.  Mo.  (1889),  g§  563,  568 ;  3  Nolen  v.  Royston,  30  Ark.  561 ; 
Henderson  v.  Drake,  30  Mo.  363 ;  Graves  v.  Cole,  1  G.  Greene,  405. 
Musgrove  v.  Mott,  90  id.  107.     It  is  *  Hills  v.  Moore,  40  Mich.  210. 

8 


Hi  ATTACHMENT    AFFIDAVIT.  [§  146. 

the  time  of  the  amending  of  the  affidavit,  but  those  that 
existed  at  the  time  of  the  issuing  of  the  writ ;  for,  if  the  court 
acted  without  jurisdiction,  for  want  of  essential  facts,  no  new 
state  of  facts  would  cure  the  error.^ 

Any  rights  acquired  by  third  persons  between  the  time 
of  the  issuance  of  a  writ  upon  a  defective  affidavit,  and  that 
of  the  amendment  of  the  affidavit,  would  be  unaffected  by  the 
amendment.  In  other  words,  though  such  tardy  statement 
of  the  true  grounds  of  procedure  may  be  made  available  to 
the  plaintiff  against  the  defendant,  they  cannot  reach  the 
intervening  rights  and  interests  of  others.^  But  it  has  been 
held  that  an  amendment  to  show  how  a  debt  arose  relates  to 
the  beginning  of  the  suit,  so  that  the  lien  ranks  above  that  of 
a  junior  attachment  made  before  the  amendment.^  Sureties' 
on  a  bond  for  the  dissolution  of  an  attachment  are  not  bound 
for  an  increase  of  the  plaintiff's  claim  made  by  amendment 
after  the  bonding;*  but  such  sureties  are  not  discharged  by 
the  plaintiff's  -amendment  of  a  count  so  as  to  state  it  more 
accurately  .'^ 

If  there  should  be  such  a  change  in  one  count  of  the  declara- 
tion as  to  relieve  the  sureties  from  liability  thereunder,  they 
would  yet  remain  bound  for  the  sums  claimed  under  the  other 
counts  not  amended  nor  affected.^ 

§  14G.  A  motion  for  leave  to  amend  the  affidavit  comes  too 
late  after  a  motion  to  vacate  the  attachment,  as  a  general  rule 
of  practice.^     The  practice  varies  in  different  states.     In  some, 

iLillard   v.   Carter,   7  Heisk.  604;  fin,  65  id.  29;  Ohio,  etc.  Co.  v.  Insur- 

Robinson  v.  Burtou,  5  Kan.  293 ;  Hall  ance  Co.,  13  Ohio,  220 ;  Denny  v.  Ward, 

V.  Brazelton,  46  Ala.  359 ;  Crouch  v.  3  Pick.  199. 

Crouch,  9  Iowa,  269 ;  Marx  v.  Abram-  ^  Cook  tr.  New  York,  etc.  Co.  (N.  C), 

son,    53    Tex.    264 ;    Wadsworth    v.  19  S.  E.  664. 

Cheeny,    10    Iowa,   257 ;    Sherrill   v.  *  Prince   v.  Clark.    127  Mass.  599 ; 

Bench,  37  Ark.  560 ;  Deories  u  Sum-  Hill    r.    Hunnewell,    1    Pick.    192; 

mit,  86  N.  C.  126;  Mantz  v.  Hendley,  Willis  v.  Crooker,  id.  204;  Wood  v. 

2  Hen.  &  M.  308 ;  U.  S.  Baking  Co.  v.  Denny,    7    Gray,    540 ;   Freeman  v. 

Bachman,   38   W.   Va.   84;  Cosner's  Creech,  112  Mass.  180. 

Adm'r  v.  Smith,  36  W.  Va.  788.  5  Cutter  v.  Richardson,  125  Mass.  72. 

2  Patterson  v.  Gulnare,  2  Dis.  505 ;  «  Warren  v.  Lord,  131   Mass.  560 ; 

Whitney   v.   Brunette,    15  Wis.   61;  Knight  r.  Dorr,  19  Pick.  48;  Seeley 

Bell  V.  Hall,  2  Duvall,  288 :  Moore  v.  v.  Brown,  14  id.  177. 

Graham,   58  Mich.    25 ;    Williams  v.  '  Trow's  Printing   &  Bookbinding 

Sharpe,  70  N.  C.  582 ;  Foster  r.  AVood-  Co.  v.  Hart,  60  How.  (N.  Y.)  Pr.   190. 


§§  147,  148.]  AMENDMENTS.  115 

amendments  to  attachment  affidavits  are  inhibited,'  In  oth- 
ers they  are  allowed  with  varying  degrees  of  liberality .^ 

Landlords,  on  attachments  for  rent,  have  been  allowed  to 
amend  their  affidavits  after  the  issuance  of  the  writ.'  And 
amendments  by  inserting  grounds  existing  when  the  affidavit 
was  first  made  have  even  been  permitted  after  appeal,*  though 
the  general  practice  is  otherwise.^ 

§  147.  The  rule  is  imperative  in  some  states,  and,  indeed,  it 
is  pretty  general,  that  fatal  defects  cannot  be  amended  after 
the  attachment  has  been  issued.^  Even  where  amendments 
are  allowable,  they  will  not  be  periiiitted  to  the  injury  of  other 
attaching  creditors.'' 

Some  errors  or  omissions  in  the  affidavit  may  be  cured  by 
the  petition  filed  simultaneously  with  it,  or  nearly  at  the  same 
time.  If  the  full  names  of  persons  composing  a  partnership 
are  set  forth  in  the  petition  or  declaration,  that  sufficiently 
explains  the  affidavit  where  only  the  firm  name  is  stated,^ 
just  as  like  omission  in  the  petition  may  be  supplied  by  the 
affidavit.^ 

§  148.  So  far  as  the  defendant  is  concerned,  if  he  is  present 
in  court,  and  a  motion  by  the  plaintiff  to  amend  an  attach- 
ment is  heard  contradictorily,  he  has  not  the  same  reason  to 

1  Marx  V.  Abramson,  53  Tex.  264.  Amendment  has   been   allowed  the 

2Sherrill   v.   Bench,  37   Ark.  560;  landlord  even  after  the  quashing  of 

Tommey    v.   Gamble,   66   Ala.    174:  his  attachment  because  of  the  omis- 

Halley  v.  Jackson,  48  Md.  254 ;  Allen  sion  of  a  necessary  averment.  Nolen 

V.  Brown,  4  Met.  (Ky.)  342;  Worth-  v.  Royston,  36  Ark.  561. 

ington  V.  Carey.  1  id.  470 ;  Staggers  ^  Sherrill  v.  Bench,  37  Ark.  560. 

V.  Washington,  56  Ala.  225 ;  Lillard  »  Adams  v.  Merritt,  10  111.  App.  275. 

V.  Carter,  7  Heisk.  604.  ^  xhe  rule  is  well  expressed  in  Lill- 

3  Rogers  v.  Cooper,   33  Ark.   406.  ard  v.  Carter.  7  Heisk.  604 ;  Hall  v. 

In  Alabama  the  affidavit  in  an   at-  Brazelton,   46  Ala.    359.     But  there 

tachment  for  rent  is  not  amendable  are  exceptions  to  the    rule,    as    in 

if  it  omits  to  allege  that  the  removal  North  Cai'olina.    Brown  v.  Hawkins, 

of  the  crops  (if  that  is  the  ground)  65  N.  C.  645. 

was  without  the  landlord's  consent.  "  Patterson  v.  Gulnare,  2   Disnej', 

Shield  V.  Dothard,  59  Ala.  595.     But  505. 

amendments    in    such    attachments  8  Clayburg  v.  Ford,  3  111.  App.  542. 

have  been  frequently  allowed.  Rich-  See   Barber  v.  Smith,  41  Mich.  138, 

ards  V.  Bestor,  90  Ala.  352 ;  Dryer  v.  with  reference  to  names  and  nominal 

Lewis,  57  id.  551 ;  Steele  v.  Tutwiler,  mistaken 

id.  113;  Lecroy  v.  Wiggins,  31  id.  13.  ^^  See  Mason  v.  Rice,  66  la.  174. 


116  ATTACHMENT    AFFIDAVIT.  [§  149. 

complain  of  an  amendment  as  a  competing  attaching  creditor 
would  have.^ 

Many  defects  of  affidavit  are  cured  by  the  defendant's  gen- 
eral appearance,^  but  not  the  omission  of  statutory  requisites. 
His  appearance  does  not  give  the  court  jurisdiction  of  the 
ancillary  action  where  there  is  such  omission.  But  it  has  been 
held  that  by  appearing  and  putting  the  declaration  at  general 
issue  the  defendant  waives  all  objection  to  the  attachment.' 

When  there  are  two  attachment  suits  against  a  defendant 
who  has  a  dormant  partner,  the  partnership  assets  in  the  name 
of  the  defendant  are  attachable.  One  of  the  attachers  would 
gain  no  advantage  over  the  other  by  amending  his  pleading 
so  as  to  include  the  dormant  partner,  nor  would  he  lose  his 
priority  by  the  useless  and  harmless  amendment.*  No  notice 
of  such  amendment  need  be  given  to  the  rival  attacher,  since 
it  does  not  affect  his  interest  or  the  question  of  priority.* 

§  149.  Additions. —  If  the  affidavit  is  good  for  a  debt  due, 
but  bad  for  a  debt  not  due,  it  may  be  amended ;  ^  or  to  include 
additional  items  of  debt;^  or  to  add  that  the  affiant  believes 
he  Would  lose  his  rent  if  left  to  ordinary  process.^  If  dam- 
ages be  overstated,  there  m?y  be  correction  by  way  of  amend- 
ment.^ 

The  plaintiff  has  been  allowed  to  state  corporate  character 
by  way  of  amendment.^"  An  affidavit  of  fraudulent  intent  in 
the  disposition  of  property  may  be  amplified  on  the  trial  by 
adding  a  statement  of  facts.^^     But  new  grounds  are  not  to  be 

'  In  Fitzpatrick  v.  Flannegan,  106  *  Wright  v.  Herrick,  125  Mass.  154 : 

U.  S.   650,   it  was  held  that  where  Lord  v.  Baldwin,  6  Pick.  348 ;  French 

amendments  to    defective  affidavits  v.  Chase,  6  Greenl.  166. 

are  authorized,  they  may  be  made  =  Tucker  v.  WJiite,  5  Allen,  322. 

after  the  levy ;    even  after  the  de-  6  Baker  Wire  Co.  v.  Kingman,  44 

fendant  has  filed  a  plea  in  abatement  Kan.  70. 

to  the  grounds  upon  which  the  writ  ">  Chapman  v.  Stuckey,  22  111.  A  pp. 

was  issued  and  the  levy  made,  the  31. 

plaintiff  may  amend   and  set  forth  8  Norton  i:  Flake,  36  Mo.  App.  698. 

new  grounds,  if  the  defendant  is  not  9  Freeborn  v.  Glazer,  10  Cal.  837. 

taken   by   surprise,  nor   prejudiced,  l"  Rosenberg  r.  Ciaflin  Co.,  95  Ala. 

nor  put  to  any  disadvantage  thereby.  249. 

'- Bray  ton  r.  Freese,  1  Ind.  121.  n  Josephi  v.  Clothing  Co.  (Mont.), 

3  Gum  Hardware  Co.  v.  Denison,  33  P.  1;  Magee  v.  Fogerty,  6  Mont. 

83  Mich.  40 ;  Wasey  v.  Mahoney,  55  237 ;    Longstaff   v.   Miles,  5  id.  554 ; 

id.  194 ;  Taylor  v.  Adams,  58  id.  187.  Pierse    v.   Miles,  id.   549 ;   Tilton  v. 


§§  150-152.]  AMENDMENTS.  117 

added  if  they  existed  when  the  affidavit  was  made.^  Xor  can 
the  affidavit  be  negatived  by  amendment.-  Disjunctive  alle- 
gations, however,  may  be  reconciled.^ 

§  150.  If  the  defendant  makes  no  plea  in  abatement  or 
other  resistance  to  an  amended  affidavit,  but  makes  default, 
the  plaintiff  may  move  for  judgment,  in  Missouri,  without 
further  proof.* 

§  151.  The  time  for  amendment  is  before  the  affidavit  has 
been  declared  defective.^  Objections  to  defects  should  be 
made  in  the  trial  court  before  appeal;''  but  amendment  has 
been  allowed  in  the  appellate  court.'  If  a  judgment  sustain- 
ing attachment  is  collaterally  attacked  on  the  ground  that 
the  affidavit,  now  lost,  was  insufficient,  sufficiency  will  be  pre- 
sumed,^ 

§  152.  A  voidable  defect  in  the  attachment  affidavit  must 
be  attacked  in  the  proceedings,  if  at  all.  After  judgment 
there  can  be  no  collateral  attack  if  the  court  had  jurisdiction.' 
After  property  has  been  condemned  in  proceedings  in  rem 
the  affidavit  is  not  collaterally  assailable.^"  An  amendable  affi- 
davit is  not  void ; "  so  the  jurisdiction  is  good  ^-  whether  the 
defects  be  cured  or  not. 

Subsequent  attaching  creditors  have  no  priority  over  the 
first  attacher  because  of  amendable  defects  in  the  proceed- 
ings. Their  remedy  is  to  compel  an  amendment.^^  An  affi- 
davit "on  belief"  is  amendable,  as  against  an  intervenor,  in 
Arkansas.^*     This  is  true  with  regard  to  minor  errors;  but 

Cofield.   93    U.    S.    163 ;    Erstein    v.  Haynes  v.  Co  wen,  15  id.  645.     Com- 

Rothschild,   23    Fed.    61 ;    Coston    v.  pare  Hargis  v.  Morse.  7  id.  415. 

Paige,   9   Ohio  St.  397 ;  Wheeler  v.  9  Westcott  v.  Sharp,  5  N.  J.  L.  392 ; 

Farmer,   38  Cal.   203 ;    Mont.    Code  Russel  v.  Work,  6  Vroom,  316 ;  Scriv- 

€iv.  Proc,  §S  112-119.  ener  v.  Uietz,  68  Cal.  1. 

1  Brookmire  v.  Rosa,  34  Neb.  227.  i"  Burnett  v.  McCluey,  92  Mo.  280, 

-  Freer  v.  White  (Mich.),  51  N.  W.  overruling  a  case  of  the  same  title, 

807.  78  id.  676,  and  Bray  v.  McCluey,  55 

3  Salmon  v.  Mills,  49  Fed.  333.  Ark.  id.  128. 

Mans.  Dig.,  §  315,  construed.  "  Sheldon  v.  Kivett,  110  N.  C.  408. 

^  Musgrove  v.  Mott,  90  Mo.  107.  12  American  Ins.  Co.  v.  Hettler,  46 

5  Id.  111.  App.  416. 

6Horton    v.    Miller,    84  Ala.   537;  I3  Fleischner  u.  Cable  Co.,  55  Fed. 

Staggers  v.  Washington,  56  id.  225.  738;  Hill's  Code  (Wash.),  g§  308,  322. 

■^  Sheldon  v.  Kivett,  110  N.  C.  408.  1^  Sanuoner  v.  Jacobson,  47  Ark.  31. 

8  Head    v.    Daniels,    38    Kan.    1; 


118  ATTACHMENT    AFFIDAVIT,  [§§  153,  154. 

where  the  statute  allows  emendation  beyond  them,  even  to 
the  perfecting  of  insufficient  affidavits,  the  subsequent  attach- 
ing creditor  who  has  complied  with  the  statute  should  rank 
above  the  first  who  has  not. 


X.  The  Affidavit  as  Evidence. 

§  153,  Where  it  is  made  the  duty  of  the  court  to  issue  the 
writ  upon  the  sworn  statement  of  the  necessary  statutory 
facts,  no  further  preliminary  showing  can  be  exacted  of  the 
plaintiff.  The  writ  issues  as  a  matter  of  course  on  the  affi- 
davit and  bond.^ 

If  one  of  several  statutory  grounds  be  properly  alleged  in 
the  affidavit,  the  showing  is  sufficient  for  the  granting  of  the 
Avrit,  though  other  grounds  be  inadequately  stated.^ 

An  oath  to  one's  belief,  and  information  received  from 
others,  is  no  evidence  of  the  facts  believed  or  heard ;  yet, 
where  the  statute  authorizes  the  attachment  writ  to  be  issued 
on  such  show^ing,  the  plaintiff's  proof  of  the  facts  is  relegated 
to  the  trial  of  the  cause,  or  that  of  an  issue  involving  them 
joined  on  some  proceeding  pendente  lite.  The  oath  being- 
evidence  of  the  plaintiff's  belief  only,  or  of  his  hearsay  infor- 
mation, or  both,  should  be  supported  by  a  disclosure  of  the 
source  of  belief  or  information,  the  name  of  the  informant, 
the  reason  of  his  not  appearing,  etc.^  And  the  affiant  should 
swear  that  he  believes  in  the  truth  of  the  information.* 

§  154.  Troof  to  the  satisfaction  of  the  court. —  But  where 
the  requisite  facts  must  be  proved  to  the  satisfaction  of  the 
court,  the  affidavit  of  the  plaintiff  may  not  be  deemed  suffi- 
cient. The  court  may  not  be  satisfied,  and  may  require  fur- 
ther proof.  What  the  court  must  have  proved  (though  by 
evidence  ex  parte)  is  some  good  ground  for  the  issuing  of  the 
writ  beyond  the  statement  of  indebtedness.  Suppose  the 
ground  laid  by  plaintiff  should  be  that  the  defendant  is  about 
to  abscond.     An  oath  that  the  plaintiff  believes  that  the  de- 

1  Ferris  v.  Carlton,  8  Phila.  549.  Crandall  v.  McKaj-,  6  id.  483 ;  Yates 

2Dunlap  V.   McFarland,   25    Kan.  v.   North,  44   N.  Y.  271;  Matter   of 

488 ;  Lawver  v.  Langhans,  85  111.  138 ;  Fitch,  2  Wend.  298. 

Rosenheim  v.  Fifield,  12  Brad.  802.  *  Decker  v.  Bryant,  7  Barb.  182. 

3  Bennett  v.  Edwards,  27  Hun,  352 ; 


§  155.]  AFFIDAVIT   AS    EVIDENCE.  119 

fendant  is  about  to  abscond  would  be  no  establishment  of  the 
fact  that  the  defendant  is  about  to  abscond.  But,  should 
there  be  evidence  showino^  circumstances  that  are  convincing: 
to  the  judge,  he  may  be  satisfied  that  the  debtor  is  about  to 
run  away  and  may  grant  a  writ.  "When  he  must  first  be  sat- 
isfied, not  only  of  the  absconding  or  intent  to  abscond,  but 
that  the  object  of  the  debtor  is  to  defraud  creditors,  such  ad- 
ditional facts  must  be  reasonably  shown  by  affidavits  or  other 
ex  f  arte  evidence.  In  other  words,  statute  requirements  must 
be  met,  whatever  they  are.^  When  the  statute  requires  the 
plaintiff  to  make  the  preliminary  showing  "to  the  satisfaction 
of  the  judge,"  the  affidavit  must  be  such  as  to  amount  to  legal 
proof,  while  yet  uncontradicted.^ 

If  the  affidavit  be  such  as  to  satisfy  the  judge,  commissioner 
or  other  officer  empowered  to  act  judicially  upon  it,  it  will  be 
sufficient  for  the  granting  of  the  writ,  though  it  afterwards 
prove  inadequate  on  motion  to  dissolve.^ 

Proof  '•'  to  the  satisfaction  of  the  justice,"  as  required  by 
statute,  is  not  the  sole  test  of  an  affidavit.'*  The  justice  may 
be  satisfied  and  the  writ  may  be  issued;  yet  the  affidavit  it- 
self may  not  be  such  evidence  of  the  fact  stated  in  it  as  to 
warrant  the  justice  in  his  action.  AYhen  tested  by  a  motion 
to  vacate  or  other  proper  legal  method,  it  may  prove  insuffi- 
cient. 

§  155.  Traverse. —  Where  no  traverse  of  the  facts  stated  in 
the  affidavit  is  allowed,  great  strictness  is  required  of  the 
plaintiff  in  compliance  with  the  law  governing  the  issue  of  an 
attachment  upon  his  oath  or  upon  other  evidence.^     Where  it 

1  Pierce  v.  Smith,  1  Minn.  83;  Staples  u  Fairchild,  3  id.  41 ;  Skin- 
Keigher  v.  McCormick,  11  id.  545;  niou  v.  Kelley,  18  id.  355;  Scoon- 
Ex  parte  Haynes,  18  Wend.  611 ;  Mil-  maker  v.  Spencer,  54  id.  366 ;  Inman 
ler  V.  Brinkerhoff,  4  Den.  118;  Ex  v.  Allport,  65  111.  540;  Morrison  v. 
parte  Robinson,  21  Wend.  672;  hire  Fake,  1  Pinney,  133;  Easton  v.  Mala- 
Faulkner,  4  Hill  (N.  Y.),  5C8 ;  Matter  vasi,  7  Daly,  147. 

of  Bliss,  7  id.  187.  *  Curwensville  Manuf.  Co.  v.  Bloom, 

2  St.  Amant  r.  Beixcedon,  3  Sandf.  10  Pa.  Co.  Ct.  275 ;  Act  July  12.  1842, 
703;  Mayhew   v.  Dudley,!   Pinney,     §27. 

95 ;  Hill   V,  Bond,  22   How.  Pr.  272 ;  5  Formerly  this  was  the  case  in 

Mott  V.  Lawrence,  17  How.  559 ;  Vos-  Wisconsin,   and  the    reasons   apply 

burgh  V.  Welch,  11  Johns.  175  ;  Brown  wherever  traverse  is  not  permitted. 

V.  Hinchman,  9  id.  75.  Lorrain  v.  Higgins.  2  Pin.  (Wis.)  454; 

3  Hall  V.   Stryker,   27   N.   Y.  596 ;  Quaries  r.  Robinson,  id.  97 ;  Merrill 


120  ATTACHMENT    AFFIDAVIT.  [§§  156,   157. 

is  allowed,  more  liberality  is  shown  towards  the  plaintiff  in 
granting  him  the  writ,  since  there  is  a  summary  remedy,  by 
rule  or  otherwise,  in  case  the  attachment  should  turn  out  to 
have  been  improvidently  granted.^ 

§  156.  Though  the  plaintiff  may  have  legally  procured  his 
writ  upon  sw^earing  to  his  belief  of  a  fact,  the  question,  when 
the  defendant  comes  to  traverse  the  affidavit,  is  not  what  the 
plaintiff  believed  when  he  made  oath,  but  whether  the  facts 
were  really  true  which  he  swore  that  he  believed  to  be  true.- 
The  grounds  for  attachment  laid  down  in  any  statute  are  not 
the  beliefs  of  facts  but  facts  themselves ;  and,  though  the  writ 
may  issue  under  many  of  the  statutes  upon  oath  to  believe,  it 
can  never  be  consummated  without  proof  of  the  necessary 
facts.  And  wherever  the  debtor  may  legally  draw  the  grounds 
of  attachment  into  question  by  traverse,  in  some  form,  before 
the  trial  of  the  cause,  those  grounds  cannot  be  maintained 
merely  by  proof  of  the  plaintiff's  belief  in  their  existence.^ 

When  an  affidavit  has  been  traversed  and  sustained  it  has 
become  part  of  the  pleadings ;  and  it  will  not  thereafter  be 
struck  out  on  motion  because  the  affiant  does  not  appear  and 
submit  to  a  cross-examination.^ 

XI.  The  Affidavit  Jurisdictional. 

§  157.  Eeasons. —  The  affidavit  required  by  statute  is  essen- 
tial to  the  validity  of  the  writ  and  to  the  jurisdiction  of  the 
court  in  attachment  proceedings.  It  is  required  and  rendered 
thus  essential  because  the  creditor  has  no  specific  lien  upon 
any  particular  property  of  his  alleged  debtor;  and  he  is  not 
entitled  to  the  extraordinary  relief  which  the  statute  gives  to 
enforce  an  ordinary  debt  unless  he  makes  the  required  oath 
showing  the  indebtedness  to  exist  (and  that  the  debt  is  due, 
when  the  statute  requires  that  showing),  and  that  such  statu- 
tory grounds  exist  as  are  requisite  to  entitle  him  to  the  pro- 

V.  Law,  1  id.  221 ;  Morrison  v.  Ream,  were  decided  upon   construction  of 

id.  244 ;  Slaughter  v.  Bevans,  id.  348.  Wisconsin  statutes, 

1  Davidson  v.  Hackett,  49  Wis.  186.  3  Davidson  v.  Hackett,  49  Wis.  186 ; 

^  Davidson  v.  Hackett.  49  Wis.  186 ;  Noonan  v.  Pomeroy,  14  id.  568 ;  Rice 

Cohen  v.  Burr,  6  id.  200 :  Cooper  v.  v.  Jerenson,  54  id.  248. 

Smith,  8  id.  358.    The  above  cases  *  Churchill  v.  Hill  (Ark.),  26  S.  W. 

378. 


§  157.]  AFFIDAVIT   JURISDICTIONAL.  121 

cess  of  the  court.  The  procedure  is  anomalous;  the  remedy 
is  utterly  repulsive  to  the  instinct  of  justice,  if  ordinary  pro- 
cess is  adequate  and  no  reason  can  be  shown  why  there  should 
be  seizure  before  judgment.  The  remedy  is  one  that  might 
greatly  injure  the  defendant  if  he  is  not  really  indebted  as  al- 
leged, or  is  not  really  putting  in  jeopardy  the  right  of  the 
creditor  to  secure  his  claim  in  the  ordinary  way;  and  there- 
fore the  law  demands  that  affidavit  of  the  facts  shall  be  made; 
and  authorizes  the  court  to  take  jurisdiction  to  issue  the  pro- 
cess only  when  the  plaintiff  has  filed  his  oath,  and  also  a  bond 
when  that  too  is  statutory,  as  it  usually  is.  The  statute  re- 
quirement of  an  alfidavit,  or  its  equivalent  in  some  form  of 
preliminary  evidence  to  support  the  writ,  is  universal.  The 
jurisdiction  of  the  court  depends  upon  the  affidavit  (not  upon 
the  truth  of  it '),  so  far  as  concerns  the  issuance  of  the  attach- 
ment. Unless  the  jurisdiction  exists;  unless  the  plaintiff  lays 
the  required  foundation,  the  writ,  if  issued,  and  the  proceed- 
ings following  it,  would  be  null  and  void.  If  there  is  no  affi- 
davit, or  if  there  is  one  fatally  defective  and  not  amendable, 
and  if  there  is  no  w^aiver  by  the  defendant,  all  following  pro- 
ceedings under  a  writ  issued  without  such  requisite  would  be 
jurisdictionless  and  void.'- 

iDwyer  v.  Tostard,  65  Tex.  432;  Wallace,  19   id.    57,   74;    Cadwell  r. 

Tanner  v.  Hall,  22  Fla.  391.  Colgate,  7  Barb.  (N.  Y.)  253 ;  Vankirk 

2  Wright  V.   Smith,   66    Ala.   545;  u  Wilds,  11  id.  520;  Bates  v.  Relyea, 

Johnson  v.  Hannah,  id.  127 ;  Clark  v.  23  Wend.  386 ;  Earl  v.  Camp,  16  id. 

Garther,   6  id.  139;   Jones  v.  Pope,  562;    Morgan    v.    House,    36    How. 

id.   154;   Cooper  v.  Trederick,   9  id.  (K  Y.)  Pr.  326;  Smith  v.  Luce,  14 

738 ;  McGowen  v.  Sprague,  23  id.  524 ;  Wend.  237 ;  Ex  parte  Haynes,  18  id. 

Kirksey  v.  Fike,  27  id.  383 ;    Hoze-  611 ;  Ex  parte  Robinson,  21  id.  672 ; 

man  v.  Rose,  40  id.  212 ;  Courrier  v.  In  re  Faulkner,  4  Hill  (N.  Y),  598 ; 

Cleghorn,  3  Iowa,  523 ;  Eads  v.  Pit-  In  re  Bliss,  7  id.  187 ;  Parker  v.  Wal- 

kin.  3  id.    77 ;    Clark   v.   Roberts,  1  rod,  16  Wend.  514 ;  Smith  v.  Davis, 

111.  222 ;  Manly  v.  Headley,  10  Kan.  29  Hun,  306 ;  Foster  v.  Jones,  1  Mc- 

88;   Black  v.  Brisbin,  3  Minn.  360;  Cord  (S.  C),  116;  Devries  r.  Summit, 

Beach  v.  Botsford,  1   Doug.   (Mich.)  86  N.  C.  126 ;  Biggs  v.  Blue,  5  McLean, 

199 ;  Greenvault  v.  Farmers'  Bank,  148 ;  Bruce  v.  Cook,  6  Gill  &  Johnson 

2    Douglas   (Mich.),    498;    Wight   v.  (Md.),  345;  Shockley  v.  Bulloch,   18 

Warner,   1    Doug.    384 ;    Wilson    v.  Ga.  283 ;  Graham  v.  De  Lannay,  34  id. 

Arnold,  5  Mich.  98 ;    Hale  v.  Chand-  422 ;  Erwin  v.  Commercial  Bank,  3 

ler,  3  id.  531 ;   Buckley  v.  Lowry,  2  La.  Ann.  186 ;  Kerr  v.   Smith.  5  B. 

id.    418 :    Le  Roy    v.   East    Saginaw  Mon.   352 ;    Calk  v.  Chiles,   9   Dana 

City   Ry.,    18    id.   233 ;    Watkins    v.  (Ky.),  265 ;  Worstell  v.  Ward,  1  Bush, 


122  ATTACHMENT    AFFIDAVIT.  [§  158. 

§  158.  Michigan  rule. —  There  was  a  case  in  Michigan  which 
grew  out  of  an  attachment  suit  in  a  federal  court,  in  which 
the  defendants  had  been  personally  cited,  so  that  there  un- 
questionably was  jurisdiction  over  them  in  the  personal  action ; 
but  the  affidavit  being  fatally  defective  because  the  creditor 
did  not  swear  that  the  debt  was  due  as  required  by  the  statute 
of  Michigan  —  the  federal  court  sitting  in  that  state  —  there 
was  no  authority  for  issuing  the  writ  to  attach  property  be- 
fore judgment.  The  marshal  having  levied  upon  property  in 
the  lawful  possession  of  third  persons  holding  under  chattel 
mortgage,  they  sued  him  in  the  state  court  for  trespass,  and 
there  he  offered  to  prove  that  the  property  belonged  to  the 
attachment  debtor,  and  sought  to  shield  himself  under  the 
writ.  Ruled  against  as  to  that  evidence  and  failing  in  that 
defense,  he  took  the  case  to  the  supreme  court  of  Michigan, 
where  it  was  held  that  the  statutory  requirement  of  the  affi- 
davit was  jurisdictional  and  that  the  writ  was  without  validity 
because  the  debt  had  not  been  sworn  to  be  due,  and  therefore 
the  marshal  was  a  trespasser  for  levying  under  it.  The  court 
added :  "  The  llrst  step  in  this  jurisdiction  is  to  show  not  a 
writ  merely  but  a  valid  writ ;  and  there  can  be  no  valid  writ 
of  attachment  without  a  sufficient  affidavit.  The  marshal 
understood  this  and  endeavored  to  satisfy  the  rule  by  produc- 

198 ;  Burnam  v.  Romans.  3  id.  191 ;  cake  v.  Harris,  10  S.  &  R.  109 ;  Deu- 

Kennedy  v.  Dillon,  1  A.  K  Marshall,  pree  v.  Eisenach,  9  Ga.  598 ;  Coward 

354;    McReynolds  v.  Neal,   8   Hum-  v.  Dillinger,  5G   Md.   59;   Bowen  v. 

phreys  (Tenu.),  12 ;  Maples  v.  Tunis,  Slocum,    17  Wis.    181 ;    Whitney  v. 

11   id.  108;   McCulloch   v.  Foster,  4  Brunett,  15  id.  61;  Marx  u  Abram- 

Yerger,  162;  Conrad  v.  McGee,  9  id.  son,  53  Tex.  264 ;  Messner  v.  Hutchins, 

428 ;  Williams  V.  Glasgow,  1  Nev.  533 ;  17  id.  597 ;  McNamara  v.  Ellis,  14  Ind. 

Hargadine  v.  Van  Horn,  72  Mo.  370 ;  516 ;  Mantz  v.  Hendly,  2  Hening  & 

Sanders  v.  Canett,  38  Ala.  51 ;  Green-  Munford     (Va.),    308 ;     O'Farrell    v. 

way  V.  Mead,  26  N.  J.  L.  303 ;  Merrill  Heard,   22    Minn.   189 ;,   Borland    v. 

V.  Montgomery,  25  Mich.  73 ;  Bards-  Kingsbury,  65  Mich.  59,  ovemding 

ley  V.  Hines,  33  Iowa,  157 ;  Schell  v.  Hill    v.   Moore,    40    id.   210 ;    Robiu- 

Leland,  45  Mo.  289 ;  Estbrook  v.  Est-  son.  Ex  parte,  21  Wend.  672 ;  Haynes, 

brook,  64  Barb.  421 ;  Waffle  v.  Goble,  Ex  parte,  18  id.  611 ;  Bliss,  In  re,  7 

53  id.  517 ;  Spiers  v.  Halstead,  71  N.  C.  Hill,  187 ;  Faulkner,  In  re,  4  id.  598 ; 

209;  Clay  pole  V.  Houston,  12  Kansas,  Burnett    v.    McCluey,    78    Mo.    676. 

324;  Riley   v.  Nichols,  1  Heisk.  16;  Compare  Sloan  n  Mitchell,  84  Mo. 

Bruley  v.  Seaman,  30  Cal.  610 ;  Clark  546 ;  Barelli    v.  Wagner    (Tex.    Civ. 

V.  Roberts,  1   111.    222 ;   Redwood   v.  App.),  27  S.  W.  16. 
Consequa,  2  Browne  (Pa.),  78 ;  Pan- 


§  159.]  AFFIDAVIT   JUEISDICTIONAL.  123 

ing  a  certified  copy  of  the  affidavit.  Unfortunately  the  evi- 
dence defeated  the  justification  instead  of  supporting  it."  ^ 

§  159.  The  statute  of  Michigan  on  attachment  prescribes : 
"  Before  any  writ  of  attachment  shall  be  executed,  the  plaint- 
ifif,  or  some  person  in  his  behalf,  shall  make  and  annex  thereto 
an  aflBdavit  stating  that  the  defendant  therein  is  indebted  to 
the  plaintiff,  and  specifying  the  amount  of  such  indebtedness 
as  nearly  as  may  be  over  and  above  all  legal  set-offs,  and  that 
the  same  is  due  upon  contract,  express  or  implied,  or  upon 
judgment,  etc."  - 

The  clause  requiring  oath  to  the  maturity  of  the  debt  had 
been  construed  b}^  the  supreme  court  of  Michigan  before  the 
case  now  under  consideration  came  before  them ;  and  it  had 
been  held  that  stating  the  defendant  to  be  indebted  is  not 
equivalent  to  an  allegation  that  the  debt  is  due  ;^  that  the 
debt  must  be  shown  to  be  due;^  that  there  must  be  a  present 
cause  of  action  existing  at  the  time  of  filing  the  affidavit ;  ^ 
that  the  affidavit  must  aver  the  demand  to  be  due  upon  con- 
tract, etc.,^  and  that  the  affidavit  is  necessary  to  confer  juris- 
diction.^ An  attachment  is  not  assailable  collaterally  because 
the  affidavit  is  insufficient.®  But  if  the  aflidavit  is  void  the 
rule  is  otherwise. 

The  case  of  Matthews  v.  Densmore,  above  discussed,  was 
reversed  by  the  United  States  supreme  court,  but  not  on  the 
ground  that  an  oath  to  the  maturity  of  the  debt  was  not  juris- 
dictional in  Michigan ;  at  least  it  may  be  safely  assumed  that 
the  court  did  not  mean  to  be  understood  that  federal  courts 
have  jurisdiction  over  attachment  except  as  accorded  by  stat- 
utes.^ 

1  Matthews  v.  Densmore,  43  Mich.  5  Galloway  v.  Holmes,  1  Doug. 
461 ;  reversed,  109  U.  S.  216.  (Mich.)  350. 

2  Howell's      Annotated      Statutes,        6  Wilson  v.  Arnold,  5  Mich.  98. 

§  7987 ;  the  same  as  in  the  Compiled  "^  Id. ;  Greenvault  v.  F,  &  M.  Bank, 

Laws,  §  6398 :  though  by  C.  L.,  §  6433,  2  Doug.  (Mich.)  498 :  Beach  v.  Bots- 

the    affidavit  being    filed   with   the  ford,  1  id.  199;  Hale  u  Chandler,  3 

clerk  need   not  be  attached  to  the  Mich.  531 ;  Watkins  v.  Wallace,  19  id. 

writ;  and  it  was  not  attached  to  the  57,  74;  Le  Roy  v.  East  Saginaw  City 

writ  under  discussion  in  the  case  of  Railway,  18  id.  233. 

Matthews  V.  Densmore,  above  cited.  *  Brown   v.   Guthrie,   39  Hun,  29 ; 

2  Cross  V.  IMcMaken,  17  IMich.  511.  Carr  v.  Van  Hoesen,  26  Hun,  316. 

4  Wells  V.  Parker,  26  Mich.  102.  9  Densmore  v.  Matthews,  supra. 


124  ATTACHMENT   AFFIDAVIT.  [§  ICU. 

§  IGO.  Strict  construction. —  The  rule  of  construction  is  to 
insist  upon  a  strict  compliance  with  statutes  authorizing  at- 
tachments.^ Courts  should  observe  this  rule  in  using  their 
discretionary  power,  in  judging  of  the  sufficiency  of  affidavits, 
where  discretion  is  allowed ;  they  should  guard  against  the 
granting  of  writs  upon  loose  and  imperfect  affidavits.^  Such 
strictness  should  not  preclude  a  proper  indulgence,  within  the 
bounds  of  their  discretion,  in  considering  the  sufficiency  of 
affidavits  to  obtain  an  attachment.  If  the  affidavit  is  such  as 
to  require  the  officer  to  exercise  his  judgment,  he  should  grant 
the  writ  if  he  believes  the  law  to  have  been  complied  with 
substantially.^ 

The  reasons  of  the  rule  of  strict  construction  are  found  in 
the  harshness  of  the  remedy,  and  the  fact  that  it  is  out  of  the 
ordinary  course  of  practice.^  For  these  reasons,  and  espe- 
cially because  the  remedy  is  statutory,  there  can  be  no  valid 
writ  of  attachment  without  a  sufficient  affidavit,  as  already 
shown.  What  is  a  sufficient  one  will  appear  from  the  govern- 
ing statute ;  but  an  affidavit  may  literally  follow  the  statute, 
yet  be  bad.'^  For  instance,  when  it  is  required  that  the  plaintiff 
shall  swear  that  the  attachment  is  "  not  to  harass  the  defend- 
ant," the  exact  quoted  words  would  be  bad  if  there  are  two 
or  more  defendants."  Unnecessary  additions  to  the  matter 
required  do  not  vitiate.^  It  has  been  held  that  an  affidavit 
may  be  sufficient  to  give  jurisdiction  so  as  to  preclude  col- 

1  Campbell  v.  Hall,  McCahon,  53 ;  pose  of,  his  property  with  intent  to 
Parker  v.  Scott,  64  N.  C.  118;  Van  defraud  his  creditors,  it  will  be  suftl- 
Norman  v.  Jackson  Circuit  Judge,  cient.  Also,  Booth  v.  Rees,  26  111. 
45  Mich.  204 ;  Lewis  v.  Kennedy,  3  45 ;  Jackson  v.  Burke,  4  Heisk.  610. 
G.  Greene.  57 ;  Warner  v.  Everett,  7  Strict  as  to  the  grounds,  but  liberal 
B.  Mon.  262.  as  to  the  application  of  the  remedy. 

2  Skiff  r.  Stuart,  39  How.  (N.  Y.)  4  McDaniel  r.  Gardner,  34  La.  Ann. 
Pr.  885;  Lawrence  v.  Steadman,  49  342;  Bussey  v.  Rothschilds,  26  id. 
111.  270.  258 ;  Leonard  v.  Stout,   36  N.  J.  L. 

3  Talcott  V.  Rosenberg,  8  Abb.  Pr.  370. 

(N.  S.)  287.    Held  that  a  liberal  in-  ^  Goodyear  Rubber  Co.  v.  Knapp, 

dulgence    may    be    extended,    even  61  Wis.  103 ;  Miller  v.  Munson,  34  id. 

upon  questions    involving    jurisdic-  579. 

tiou;  and  that  if  the  facts  legally  6Gunst  v.   Pelham,   74  Tex.   586; 

tend  to  support  the  allegation  that  Perrill  v.  Kauffman,  72  id.  214. 

the  defendant  has  assigned  and  dis-  '  Tanner,  etc.  Co.  v.   Hall,  22   Fla. 

posed  of,  or  is  about  to  assign  or  dis-  391. 


§  100.]  AFFIDAVIT    JUKISDICTIOiSrAL.  125 

lateral  attack,  though  the  ground  and  cause  of  action  be  not 
fully  stated.^  In  a  suit  against  both  an  assignor  and  an  as- 
signee, the  affidavit  may  be  good  against  one  and  not  the 
other.2 

§  160.  In  the  construing  of  statutes  it  is  not  the  rule  to 
treat  the  lans^uage  as  sacramental,  so  that  it  must  be  em- 
bodied  verhatim  in  an  affidavit  in  laying  the  prescribed  grounds 
for  an  attachment,  unless  a  form  is  provided.*  When  the 
plaintiff  is  required  to  swear  that  the  debt  he  sues  upon  is 
due  upon  express  or  implied  contract,  equivalent  words  are 
usualy  allowable;  as  that  the  claim  is  due  —  the  defendant  is 
now  indebted  —  the  defendant  is  really  obligated  upon  con- 
tract.* But  when  the  requirement  is  that  the  affiant  must 
swear  that  he  is  entitled  to  recover  a  stated  sum  over  and 
above  all  counter-claims  known  to  him,  it  is  not  enough  to 
swear  that  he  is  "justly  entitled  to  recover  said  sum;"  *  but 
a  sworn  averment  that  the  debt  is  due  "  over  and  above  all 
discounts  and  set-offs  "  meets  the  requisition.^ 

1  Burnett  v.  McCluney,  92  Mo.  230.     id.  503 ;  Wallis  v.  Wallace,   6  How. 

2  Nat,    Bank  v.   Stelling,  32  S.   C.     (Miss.)  254. 

102.  •»  Trowbridge  v.   Sickler,    42  Wis. 

3Parmele  v.  Johnson,  15  La.  429;  417  (overruling  Whitney  f.  Brunette, 

Sawyer  v.   Arnold,  1  La.   Ann.  315;  15  Wis.  61,  and  Bowen  v.  Slocum,  17 

Cross    V.   McMaken,   17  Mich.    511;  id.   181);  Oliver  v.  Town  &  Watson, 

Ware  v.  Todd,  1  Ala.  199 ;  Graham  v.  28  id.  328 ;  Mariet  v.  Marriner,  34  id. 

Ruflf.  8  id.  171 ;  Wiltse  v.  Stearns,  13  582 ;  Euthe  v.  Eailroad  Co.,  37  id.  344 

Iowa,  282 ;  Mandel  v.  Peet,  18  Ark.  (overruling   Blackwood  v.   Jones,  27 

236 ;  Kennon  v.   Evans,  36   Ga.    89 ;  Wis.   498) ;    Creasser  v.   Young,    31 

Boydn  Buckingham,  10  Humphreys,  Ohio  St.  57;  Sleet  v.  Williams,  21  id. 

434;  Bank  of  Alabama  v.  Berry,  2  82;  Ludlow  v.  Eamsay,  11  W^all.  581. 

id,  443;  Commercial  Bank  v.  Ulman,  ^  Ruppert  v.  Haug,  87  N.  Y.  141. 

10  Smedes  &  M.   411;  Dandridge  u  SLampkiu  v.   Douglass,   27    Hun, 

Stevens,  12  id.  723;  Lee  v.  Peters,  1  517. 


CHAPTER  Y. 

THE  ATTACHMENT  BOND.i 

I.  Protection  to  the  Defendant §§  161-166 

II.  Necessary  to  the  Writ 167-169 

III.  Execution  op  the  Bond 170-174 

IV.  The  Amount 175-177 

V.  Conditions 178-181 

VI.  The  Principal 182-185 

VII.  The  Surety 186-193 

VIII.  Amendment 194-198 

I.  Protection  to  the  Defendant. 

§  161.  In  general — The  remedy  being  extraordinary,  con- 
trary to  common-lau'  procedure,  harsh  and  stringent  in  its 
nature,  would  be  manifestly  unjust  to  the  debtor  were  he  not 
protected  when  it  is  wrongfully  employed.  Were  the  writ 
issued  upon  the  plaintiff's  affidavit  alone,  upon  his  ex  pai'te 
statements  of  the  existence  and  character  of  the  debt  and  of 
the  grounds  upon  which  the  statute  authorizes  the  extraordi- 
nary process  to  be  issued;  were  his  allegation  that  ordinary 
process  would  be  inadequate  because  the  debtor  is  removing, 
has  removed  or  is  about  to  remove  himself  or  his  property 
beyond  the  jurisdiction  to  defraud  creditors,  sufficient  for  the 
preliminary  seizure,  before  judgment,  of  the  alleged  debtor's 
property ;  and  were  a  wronged  defendant  without  protection, 
great  injustice  would  be  done  in  many  cases,  and  this  statu- 
tory remedy  could  not  be  successfully  defended.  He  is  not, 
however,  entirely  without  protection,  aside  from  the  bond. 
He  has  his  action  for  damages  caused  by  an  abuse  of  the  pro- 
cess, against  the  attaching  plaintiff,  though  he  have  no  bond 
to  sue  upon.  His  action  for  malicious  attachment  is  not  de- 
pendent upon  a  bond.  The  requirement  of  an  attachment 
bond  is  not  universal;  some  of  the  states  authorize  the  issue 
of  the  writ  without  it. 

ig§  1007-1017. 


§§  162-lGJ:.]  PROTECTION    TO    DEFENDANT.  127 

§  1G2.  It  has  been  held  that  both  the  dissolution  of  the  at- 
tachment and  the  loss  of  the  principal  action  must  unite  to 
make  the  attachment  bond  collectible.^  This  must  depend, 
however,  upon  the  conditions  of  the  obligation  in  any  state. 
It  is  manifest  that  attachment  mav  be  wrongfullv  sued  out 
on  false  grounds  while  the  cause  of  action  may  be  perfectly 
true;  and  that  it  unjustly  may  cause  damage  to  the  debtor, 
while  judgment  against  him  for  the  debt  may  be  rightly  ren- 
dered. 

It  is  to  relieve  the  attachment  remedy  of  its  possible  injus- 
tice that  a  bond  is  required  of  the  creditor  for  the  eventual 
protection  of  the  debtor  in  nearly  all  of  the  states.  The  stat- 
utory redress  by  suit  on  the  bond  is  convenient  and  commend- 
able. The  obligation  is  thus  made  a  matter  of  written  con- 
tract, leaving  the  obligee  nothing  to  prove  but  its  breach  and 
the  amount  of  the  damage  in  case  of  suit.^  It  ordinarily  ob- 
viates the  necessity  of  suing  at  common  law,  as  the  bond  is 
usually  sufficient  to  cover  all  actual  damages. 

§  163.  The  defendant  is  usually  made  the  obligee  of  the 
bond.^  It  should  be  to  the  defendant  whose  property  is  at- 
tached, though  there  be  a  co-defendant  whose  property  is  not 
attached.*  If  the  defendant  is  a  firm,  the  bond  should  be 
given  to  it  and  not  to  the  members  composing  it.^  If  made 
to  the  defendant  when  the  statute  requires  that  it  be  made  to 
the  state,  it  may  be  enforced  as  a  "  voluntary  "  or  common- 
law  bond.^ 

The  injured  party,  whether  secured  by  an  attachment  bond 
or  not ;  whether  awarded  any  statutory  redress  or  not,  is  still 
entitled  to  have  his  wrongs  righted  in  some  wa}''.  He  is  enti- 
tled to  have  full  redress,  whether  a  bond  has  been  given  or 
not ;  whether,  if  given,  it  is  sulficient  to  cover  his  injury  or 
not. 

§  164.  Voluntary  bond. —  The  undertaking,  though  not  under 
statute,  may  be  good  as  a  common-law  bond.''    It  is  so  when 

1  Hahn  v.   Seifert,   64  Mich.  647 ;        *  Branshaw  v.  Tinsley  (Tex.),  33  S. 

Harbert  v.  Gormley,  115  Pa.  St.  237.  W.  184. 

-  Jackson  n   Smith,    75    Ala.   97 ;        5  Birdsong  v.  McLaren,  8  Ga.  521. 
Dyer  v.  Sharp,  2  Pa.  Co.  Ct.  R  216.        6  McLuckie  v.   Williams,    68    Md. 

See  McClendon  v.  Wells,  20  S.  C.  514.  263. 

3  Rohrbough  v.  Lepold,  68  Tex.  254.        ^  Painter  v.  Gibson  (la.),  55  N.  W. 


128  ATTACHMENT    BOND.  [§§  1G5,  IGG. 

given  out  of  tne  state  in  a  court  having  jurisdiction.^  It  must 
be  alleged  in  the  declaration  (when  an  attachment  bond,  null 
under  the  statute  but  good  at  common  law,  is  sued  upon)  that 
it  was  proceeded  upon  as  a  voluntary  or  common-law  bond.'- 

§  165.  In  case  of  malicious  prosecution  the  damage  is  often 
far  in  excess  of  the  penal  sum  stipulated  in  the  bond.  The 
suit  may  be  for  a  small  sum ;  the  statutory  bond  is  usually 
fixed  at  double  the  demand,  and  in  several  of  the  states  it  is 
less;  but  the  charge  of  absconding  or  fraudulently  removing 
property  is  so  serious  that  it  gives  rise  to  exemplary  damages 
when  maliciously  made,  and  such  damages  may  be  many 
times  greater  than  the  sum  nominated  in  the  bond.  Not  only 
in  making  the  charge,  but  otherwise,  the  proceeding  may  be 
malicious.  Under  such  circumstances  the  injured  defendant 
may  recover  on  general  principles  to  the  extent  of  the  wrong, 
either  under  the  common  ^  or  the  civil  law.* 

§  16G.  Such  general  remedy  would  not  always  prove  ade- 
quate. An  irresponsible  plaintiff  might  ruin  a  defendant  in 
business  or  reputation  ;  and  if  the  latter  should  have  recourse 
only  against  the  wrong-doer,  he  might  be  unable  to  execute 
any  judgment  for  damages.  The  utility  of  the  attachment 
bond  is  apparent  in  such  a  case.  The  obligation  of  the  plaint- 
iff to  repair  any  wrong  he  may  do  is  not  thus  enhanced,  but 
the  defendant  has  thus  the  advantage  of  the  security  given. 
He  may  test  the  ability  and  solvenc}^  of  the  surety,  and  have 
the  attachment  dissolved  if  the  bond  prove  insufficient. 

84 ;  Ripley  v.  Gear,  58  la.  .460 ;  Gar-  Brothers,  54  Iowa,  68 ;  Sledge  v.  Mc- 

retson  v.  Reader,  23  id.  22 ;  McLuckie  Laren,  29   Ga.  64 ;  Dall  v.  Cooper,  9 

V.  Williams,  68  Md.  262.  B.  J.  Lea,  574 ;  Sanders  v.  Hughes,  2 

1  Cnnniugham  v.  Jacobs,  120  Ind.  Brevard,  495 ;  Smith  v,  Eakin,  2 
306  {distinguisliing  State  v.  Younts,  Sneed,  456 ;  Churchill  v.  Abraham, 
89  Ind.  313,  and  Caffrey  v.  Dudgeon,  22  111.  455;  Donnell  v.  Jones,  13  Ala. 
38  id.  512);  Sheppard  v.  Collins,  12  490;  Pettit  v.  Mercer,  8  B.  Mon.  51; 
la.  570.  Compare  Harbough  v.  Al-  Bruce  v.  Coleman,  1  Hand}'-,  515 ; 
bertson,  102  Ind.  69.  To  same  effect :  Roach  v.  Brannon,  57  Miss.  490 ; 
"Williams  v.  Coleman,  49  Mo.  325 ;  Smith  v.  Story,  4  Humph.  169. 
Barnes  v.  Webster,  16  id.  258;  Tur-  ^Burne  r.  Gardner,  33  La,  Ann.  6, 
ner  v.  Armstrong,  9  Bradw.  24.  Teal   v.  Lyons,  30  La.  Ann.,  Part  I, 

2  Booker  v.  Smith,  38  S.  C.  228.  1140;  Senecal  r.  Smith,  9  Rob.  (La.) 

3  Cochrane  v.  Quackenbush,  29  418 ;  Grant  v.  Deuel,  id.  17.  The  gen- 
Minn.    376 ;   Nordhaus    v.    Peterson  eral  rule  of  the  civil  law  respecting 


§  167.] 


NECESSARY    TO    THE    WRIT. 


129 


II.    J^ECESSARY    TO    THE    WrIT. 

§  167.  Prerequisite. —  The  requirement  of  a  bond  from  the 
plaintiff,  with  security,  as  a  prerequisite  to  his  obtaining 
the  writ,  is  now  pretty  general  under  the  prevalent  practice 
of  attaching  to  create  and  enforce  a  lien.^  In  some  states, 
even  where  foreign  and  domestic  attachment  are  not  reofarded 
as  two  distinct  proceedings,  no  bond  is  exacted  in  an  attach- 
ment suit  against  a  non-resident  or  a  foreign  corporation 
prior  to  the  issuance  of  the  writ.- 


damages  in  general  is  expressed  as 
follows:  '"Every  act  whatever  of 
man,  that  causes  damage  to  another, 
obliges  him  by  whose  fault  it  hap- 
pened to  repair  it."  Civil  Code  of 
La.,  art.  2394.  Also,  id.,  arts.  2295, 
2296,  2304;  Code  Napoleon,  arts. 
1382-6;  Droit  Civil  de  Toullier,  liv. 
II,  tit.  8,  g  284 ;  liv.  Ill,  tit.  4 ;  Doraat 
(Strahan),  Part  I,  Book  III,  tit.  5,  sec. 
2,  art.  14 ;  Duranton,  torn.  13,  §  729 ; 
Partida  3,  tit  32,  1.  10,  11 ;  Pothier 
on  Obligations,  §§  121,  453. 

1  Clay  V.  Leather  Co.,  79  Ga.  596 ; 
Bailey  v.  Leather  Co.,  id.  600 ;  Rog- 
ers V.  Birdsall,  72  id.  133 ;  Hutche- 
son  V.  Ross,  2  A.  K.  3Iarshall,  349 ; 
Cudahy  v.  Rinehart,  60  Hun,  414; 
Tiffany  v.  Lord,  65  N.  Y.  310 ;  Van 
Loon  V.  Lyons,  61  id.  22;  Bater.  Mc- 
Dowell, 48  id.  219 ;  Kelly  v.  Archer, 
id.  68;  Davis  v.  Marsliall,  14  Barb. 
96;  Totten  v.  Sale,  72  Ala.  488; 
Walker  v.  Ivey,  74  id.  475 ;  Graham 
V.  Hughes,  77  id.  570 ;  IMobile  Ins.  Co. 
V.  Teague,  78  id.  147 ;  Bradley  v. 
Kroft,  19  Fed.  295 ;  Bank  of  Alabama 
V.  Fitzpatrick,  4  Humph.  311 ;  Steven- 
son V.  Robbins,  5  Mo.  18;  State  v. 
Chamberlin,  54  id.  338 ;  Barkaloo  v. 
Randall,  4  Blackf.  476 ;  Boyd  v.  Boyd, 
2  Nott  &  McC.  125  ;  Perminter  v.  Mc- 
Daniel,  1  Hill  (S.  C),  267 ;  Louisville 
R.  Co.  V.  Lake  (Ind.  App.),  32  N.  E.  590 ; 
Elliott  r.  Plukart,  6  Pa.  Co.  Ct.  R.  151. 
9 


2  Marsh  u.  Steele,  9  Neb.  96;  Ohn- 
stead  V.  Rivers,  id.  234 ;  Nebraska 
Code,  g  200;  Simon  v.  Stetter,  25 
Kan.  155;  Head  v.  Daniels,  38  id. 
1 ;  Baird  v.  Georgia  Pac.  R.  Co. 
(Miss.),  12  So.  547.  In  Ohio  no  bond 
is  required  in  an  attachment  suit 
against  a  non-resident  or  foreign  cor- 
poration. In  .  Delaware,  where  the 
two  kinds  of  attachment  ai-e  distin- 
guished, a  bond  or  undertaking  is  re- 
quired in  both  (when  the  defendant 
does  not  appear  and  terminate  the 
attachment  proceedings  by  giving 
special  bail),  but  not  till  the  creditor 
is  about  to  receive  the  proceeds  of 
the  attached  property  from  the  ap- 
pointed auditors,  when  he  enters  into 
recognizance  with  surety  to  repay  in 
case  the  debtor  appear  within  a  year 
and  a  day,  etc.  Maryland  retained 
this  practice  till  a  recent  date,  and 
so  did  some  other  states.  She  still 
allows  attachment  without  bond 
when  the  debtor  is  a  non-resident. 
In  Pennsylvania  foreign  attachment 
is  deemed  a  matter  of  right.  A  bond 
is  there  required  in  domestic  attach- 
ments where  fraud  is  an  element  of 
the  a]le.2^ed  ground.  In  Alabama  it 
has  been  held  that  there  should  be  a 
bond  to  secure  a  non-resident  defend- 
ant who  does  not  appear.  Erwin  v. 
Ferguson,  5  Ala.  158;  Walker  v. 
Bank  of  Mobile,  6  id.  452. 


130  ATTACHMENT    BOND  [§'§  IGS,  1G9 

§  168.  Jurisdictional— The  practice  is  now  general,  thongh 
not  universal,  to  require  the  bond  preliminarily  with  the  view 
to  final  judgment  and  privilege  upon  the  property  attached. 
It  is,  when  so  required,  an  essential  prerequisite  to  the  writ 
and  a  jurisdictional  matter.^ 

If  the  bond  really  was  filed  before  the  issue  of  the  writ  it 
may  be  shown  that  it  was  so  filed,  though  it  has  been  post- 
dated by  mistake.^  When  filed  after  the  writ  it  is  not  every- 
where held  wholly  inoperative.  In  some  states  the  attach- 
ment is  not  void  in  consequence  but  is  voidable.''  The  issue 
of  the  writ  without  bond,  where  the  latter  is  required,  makes 
both  the  plaintiff  and  the  officer  liable  to  the  defendant  for 
attachment  under  such  writ."*  But  there  is  no  such  liability 
Avhere  bond  is  not  required  to  be  given  till  the  officer  has 
taken  possession.'^  It  is  not  essential  that  the  bond  be  recited 
or  stated  in  the  writ.*' 

Where  the  clerk  of  court  has  no  power  to  issue  attachment 
for  debt  not  due  (though  the  judge  has),  an  attachment,  with 
bond,  issued  by  him  would  be  null.'' 

The  exceptional  states  where  the  bond  is  not  required  leave 
the  injured  defendant  to  his  common-law  remedy.  And  those 
which  limit  the  requirement  to  special  grounds  leave  to  the 
defendant  the  same  resort  in  cases  of  attachment  instituted 
on  other  grounds. 

§  169.  Damages. —  If  the  defendant  is  confined  to  his  com- 
mon-law remedy  he  cannot  recover  damages  merely  because 
a  plaintiff  has  sued  him  and  has  failed  in  the  suit,  but  the  07ms 

1  Louisville   R.   Co.  v.   Lake  (Ind.  But  it  had  been  held  that  such  show- 

App.),  36  N.  E.  590 ;  Mobile  Ins.  Co.  ing  could  not  be  by  parol.    Summers 

V.  Teague,  78  Ala.  147:  Graham  v.  u  Glancey,  3  Blackf.  361. 

Hughes,    77    id.    590;    Wagener    v.  3  Camberford   t'.    Hall,    3  McCord 

Booker,   31    S.    C.   375 ;    Baldwin  v.  (S.  C),  345 ;  O'Farrell  v.  Stockton,  19 

Ferguson,  35  111.  App.  393;  Bradley  Ohio  St.  296. 

V.  Kroft,  19  Fed.   295 ;  Bate  v.  Mc-  *  Barkaloo    v.   Randall,   4  Blackf. 

Dowell,   48  N.  Y.   219 ;   Lehman  v.  476 ;  Palmer  v.  Foley,  71  N.  Y.  106 ; 

Broussard,  45  La.  Ann. ;  Martin  Lexington,  etc.  R  Co.  v.  Applegatje, 

V.  Thompson,  3  Bibb  (Ky.),  252 ;  Tyson  8  Dana,  289 ;  Sturgis  v.  Knapp,  33  Vt 

V.  Hamer,  2  How.  (Miss.)  669;  Ford  186. 

V.  Hurd,  4  S.  &  Marsh.  683.    Compare  5  Kenefick  v.  Canfield,  88  Va.  122 ; 

Alexander  v.  Perdue,  30  Ark.  359.  Va.  Code,  §  2968. 

2Snelling    v.   Bryce,   41   Ga.    513;  6  Ellsworth  v.  Moore,  5  la.  486. 

Reed  v.  Bank  of  Ky.,  5  Blackf.  227,  '  Kleiue  r.  Nie,  88  Ky.  542. 


§  170.]  EXECUTION  OF  THE  BOND.  131 

is  on  the  complainant  to  show  that  he  has  been  proceeded 
against,  without  probable  cause  and  maliciously,  to  his  injury. 
If  sued  upon  ordinary  process  illegally  and  maliciously  he 
would  have  the  same  remedy  at  common  law.  It  is  the  right 
of  any  citizen,  and  often  the  right  of  any  other  person,  to  sue 
in  the  courts;  and  the  suitor  is  not  necessarily  liable  in  dam- 
ages when  he  has  made  a  mistake  as  to  his  rio-hts  and  brought 
an  action  upon  which  he  cannot  recover.  Before  he  can  be 
mulct  in  damages  for  bringing  the  suit,  it  must  be  shown  that 
he  brought  it  maliciously  or  at  least  without  probable  and  ap- 
parently reasonable  cause.  The  presumption  of  good  motives 
is  attributed  to  him,  even  though  the  law  and  the  evidence  turn 
out  to  be  against  him ;  and  therefore,  in  an  action  at  common 
law  for  damages  in  a  suit  by  ordinary  process,  the  complainant 
must  clearly  show  wrong  motives  on  the  part  of  the  suitor  as 
well  as  injury  resultant.  So  where  there  is  no  statutory  re- 
quirement of  an  attachment  bond ;  where  the  law  gives  the 
creditor  a  right  to  the  extraordinary  process  upon  his  affidavit 
of  a  debt  and  grounds  such  as  the  law  recognizes  as  the  proper 
basis  of  such  action,  the  injured  defendant's  common-law 
remedy  for  redress  is  much  like  that  for  a  malicious  ordinary 
suit. 

III.  Execution  of  the  Bond. 

§  170.  Form. —  The  bond  must  be  executed  by  the  plaintiflF, 
must  be  in  writing,  and  it  must  be  in  substantial  compliance 
with  the  statute.  It  should  be  in  the  form  prescribed  by 
statute,  if  any  is  prescribed.  It  is  held  better  to  copy  such 
form  than  to  depart  from  it  to  comply  with  provisions  of 
statute  apparently  inconsistent  with  it.^  Such  departure, 
however,  would  not  usually  be  fatal.  Most  of  the  states  re- 
quire a  substantial  following  of  the  statute  without  prescrib- 
ing any  particular  form  of  verbiage.  It  may  be  modeled 
after  a  penal  bond.-  If,  however,  it  should  fail  to  follow  the 
statute  in  any  matter  necessary  to  the  protection  of  the 
obligee,  the  variance  would  be  fatal. 

1  Proskey  v.  West,  8  S.  &  M.  315 ;        2  Conklin  v.  Dutcher,  5  How.  Pr. 
Mclntyre  v.  White,  5  How.  (Miss.)    386. 
298;    Lucky  v.   Miller,   8  Yerg.  90; 
Love  V.  Fairfield,  10  111.  303. 


13:2  ATTACHMENT    BOXD.  [§§  lTl-173. 

§  171.  Matter. —  The  bond  should  have  the  title  of  the 
cause  affixed  —  usually  at  the  top^  —  and  the  name  of  the 
court.'  In  the  body  of  the  instrument  the  stipulation  is 
the  heart.  The  amount,  conditions,  and  names  of  the  parties 
should  appear,  though  the  latter  may  be  supplied  by  the 
words  "plaintiff,"  "defendant,"  "surety,"  as  the  caption  and 
the  signatures  would  show  the  parties. 

If  the  obligation  assumed  by  the  sureties  is  joint  and 
several,  it  should  be  so  stated.  Whatever  it  is,  the  charac- 
ter of  the  obligation  should  be  stated.  The  omissioQ  of  the 
surety's  name  in  the  body  of  the  bond  is  not  fatal  if  he  has 
signed.^ 

§  172.  Seal. —  It  is  not  a  general  requirement  that  the  bond 
should  be  sealed,  but  there  have  been  several  deliverances  on 
the  subject  holding  the  seal  essential,  and  some  holding  its 
omission  fatal.^ 

§  173.  Executed  lefore  wliom. —  The  bond  obligation  is  bind- 
ing on  principal  and  surety  when  made,  signed,  filed  and  de- 
livered, whether  done  befoi-e  an  officer  or  not,  as  a  general 
rule.  But  if  the  statute  requires  that  it  be  executed  before  a 
maoistrate  or  clerk  of  court  it  should  be  done.  It  has  been 
held  fatal  not  to  execute  the  bond  in  the  clerk's  office  when 
the  statute  designated  that  place.^  Ordinarily  no  place  is 
specified :  the  essential  thing  is  that  the  defendant  be  secured 
against  an}^  abuse  of  the  extraordinary  remedy;  and  it  mat- 
ters little  where  or  before  whom  the  undertaking  is  executed. 

The  clerk  of  court  takes  the  bond  for  the  defendant.  It 
has  been  held  that  he  is  bound  to  know  that  the  surety  is 
sufficient,^  He  is  prohibited  from  denj^ing  that  he  approved 
the  bond,  after  his  filing  it,'  whether  he  indorsed  his  approval 
thereon  or  not;  for  it  is  not  very  material  whether  he  makes 
such  indorsement  or  not.^    His  approval  is  not  final.^    It  has 

1  Schrimpf  I'.  McArdle,  13  Tex.  368.  Thompson,    49    id.     188.      Compare 

2  Lawrence  v.  Yeatman,  3"  111.  15.  Churchill  v.  Fulliam,  8  Iowa,  45. 

3  Affeld  V.  People,  12  Bradw.  502.  &  Home  v.  Mitchell,  7  Bush,  131. 
4Tiflfany  v.   Lord,   65  N.    Y.  310;  6  id. 

Van   Loon   v.   Lyons,   61   N.  Y.  22;         'Pearson  r.  Gayle.  11  Ala.  278. 
Hunter  v.  Ladd,  2  111.  551;  State  v.        8  Griffith  v.  Robinson,  19  Tex.  219. 
Chamberlain,  54  Mo.   888;    State  v.        ^Blaney  v.  Findley,  2  Blackf.  338. 


§§  174,  175.]  AMOUNT.  133 

been  held  that  he  cannot  be  compelled  to  approve  by  man- 
damus} 

§  174.  Yerification. —  The  surety  or  sureties  are  sometimes 
required  to  justify  before  a  magistrate  or  the  clerk  of  the 
court  in  which  the  case  is  entitled.  The  surety,  or  each  surety 
if  there  are  more  than  one,  is  required  to  swear  or  affirm  that 
he  is  worth  the  sum  specified  in  the  bond  (or  the  sum  for 
which  he  is  made  conditionally  liable)  above  all  his  liabilities, 
exclusive  of  property  exempt  from  execution.  He  is  also  re- 
quired to  make  oath  to  his  residence  within  the  state.  Where 
verification  at  the  time  of  the  execution  of  the  undertaking:  is 
not  required,  it  is  yet  the  right  of  the  defendant  to  rule  the 
plaintiff  and  surety  or  sureties  into  court  to  test  the  ability 
and  solvency  of  the  latter. 

Sureties  verify  separately  though  they  may  have  taken  the 
obligation  jointly  and  severally.  The  notary,  clerk  or  magis- 
trate before  whom  the  verification  is  made  attaches  his  cer- 
tificate in  the  usual  form  of  acknowledgment. 

The  bond  takes  effect  upon  being  filed  and  dates  from  that 
act  when  not  dated  on  the  paper.^ 

TV.  The  Amount. 

§  175.  Statutory. —  The  amount  of  the  bond  is  fixed  by 
statute,  l^o  state  can  reasonably  make  it  less  than  enough  to 
indemnify  the  defendant  against  eventual  loss  as  actual  dam- 
ages. As  the  plaintiff  aims  to  make  seizure  of  sufficient  prop- 
erty to  satisfy  his  claim  and  all  the  costs,  he  ought  to  give 
bond  for  a  sum  adequate  to  cover  both  the  loss  and  expense 
of  the  defendant  in  case  the  writ  of  attachment  should  be  un- 
lawfully obtained  and  the  plaintiff  should  fail  to  obtain  judg- 
ment. In  many  instances  a  bond  limited  to  the  estimated 
value  of  the  property  to  be  seized,  with  the  probable  costs 
added,  would  not  render  the  defendant  perfectly  secure.  In 
case  of  the  seizure  of  a  thing  both  imperishable  and  unpro- 
ductive, a  bond  in  a  sum  equal  to  its  value  would  be  more 
than  sufficient.  But  there  must  be  some  rule  in  everv  state. 
The  gauge  is  found  in  the  amount  of  the  debt  sworn  to  in  the 

mobile  Ins.  Co.  v.  Cleveland,  76  2  ciaflin  v.  Hoover,  20  Mo.  App. 
Ala.  321.  314 


131  ATTACHMENT    BOND.  [§  176. 

affidavit.  With  this  criterion,  the  amount  of  the  bond  is  vari- 
ously fixed  in  different  states :  double  the  debt,  one-half  above 
the  debt,  etc.  If  the  claim  is  for  debt  and  interest,  the  amount 
claimed  is  the  gauge,  and  the  interest  must  be  included  in  fix- 
ing the  sum  for  the  purposes  of  the  bond ;  ^  but  such  is  not 
the  case  when  interest  is  merely  mentioned  but  not  made  part 
of  the  debt  sworn  to  in  the  affidavit.  Where  there  is  discrep- 
ancy between  the  affidavit  and  the  petition  or  declaration,  the 
amount  sworn  to  in  the  affidavit  should  be  the  standard  for 
fixing  the  sum  in  the  bond.-  In  forms  of  action  not  setting 
forth  the  exact  sum  sued  for,  if  the  affidavit  does  not  indicate 
the  amount,  the  writ  is  the  gauge  for  fixing  the  amount  of  the 
attachment  bond.'  Where  a  round  sum  is  sued  for,  as  debt  and 
damages,  it  is  understood  to  include  interest,  and  the  bond  is 
based  upon  it,  being  twice  that  sum  where  doubling  is  the 
rule.* 

§  176.  Eclative  to  the  claim. —  Though  the  bond  is  good  if 
large  enough  when  compared  with  the  sum  sworn  to  in  the 
affidavit,  while  a  larger  sum  may  be  claimed  in  tlie  petition 
or  declaration,  3'^et  the  overplus  in  the  latter  would  not,  in 
such  case,  be  secured  by  the  attachment  lien.  But  should  the 
bond  be  less  than  the  sum  sworn  in  the  affidavit  requires,  the 
attachment  could  not  be  maintained.  It  would  not  be  good 
to  the  amount  stated  and  bad  as  to  the  balance,  but  it  would 
be  wholly  bad,  and  the  proceedings  could  be  set  aside  on  such 
ground.^ 

If  double  be  required  and  given,  that  is  sufficient  though 
there  is  no  recital  of  the  claim  in  the  bond.^    If  double  be  re- 

1  McDaniel  v.  Sappingtou,  Hard.  94 ;  Young  v.  Grey,  Harper,  38 ;  Brown 
Gallagher  v.   Cogswell,  11  Fla.   127 ;     v.  Whiteford,  4  Rich.  327. 

Brown  v.  Whiteford,   4  Rich.    327;        ^Id. 

Graham  v.  Burckhalter,  2  La.  Ann.        5  Fleitas  v.  Cockrem,  101  U.  S.  301 ; 

415 ;  Planters'  Bank  v.  Bryne,  3  id.  Hamble  v.  Owen,  20  Iowa,  70 ;  Yale 

687.     It  is  held  in  New  York  that  a  v.   Cole,  31   La.   Ann.  687 ;  Marnine 

deposit  cannot  be  substituted  for  the  v.  Murphy,    8    Ind.    272 ;  Martin   t\ 

required  undertaking.    Bate  v.   Mc-  Thompson,  3  Bibb,  252 ;  Williams  i\ 

Dowell,  48  N.  Y.  Super.  Ct.  219.  Barrow,  3  La.  57 ;  Samuel  v.  Brite,  a 

2  Pope  V.  Hunter,  13  La.  306 ;  Jack-  A.  K.  Marshall,  317 ;  Hamnill  v.  Phe- 
son  V.   Warwick,   17   id.  436;    Law-  nicie,  9  Iowa,  525. 

rence  v.  Featherstou,  10  Smedes  &  M.  6  strong  v.  Lake  Weir,  etc.  Ass'n^ 
345.  25  Fla.  765 ;  Branch  u  Branch,  6  Fla. 

3  Callenderr.  Duncan,  2  Bailey,  454;     315.    S'ee  Tanner  f.  Hall,  22  id.    403, 


§§  177,  17S.]  CONDITIONS.  135 

quirecl,^  or  if  treble  the  amount  of  a  claim  not  yet  due,  its 
omission  renders  the  attachment  illegal.-  If  below  the  pre- 
scribed amount  the  bond  is  null,  though  a  claim  due  be  the 
cause  of  action.^     It  is  fatal  to  leave  the  amount  blank.'* 

Though  the  bond  be  sufficient  in  amount  when  given,  it  may 
become  inadequate  afterwards;  but  it  has  been  held  that  the 
depreciation  of  attached  corporation  stock  (not  caused  bv  the 
attachment)  was  no  ground  to  support  a  motion  to  have  the 
the  amount  of  the  attachment  bond  increased.'  Sureties  are 
not  liable  for  such  loss.^ 

§  177.  It  is  needless  to  say  that  if  a  bond  is  greater  than 
the  law  requires,  no  harm  can  thus  result  to  the  defendant, 
and  the  instrument  would  not  therefore  be  invalid ; ''  but 
the  statut.e  requirement  must  be  strictly  observed  up  to  the 
fixed  amount.  There  is  nothing  more  imperative  in  the  at- 
tachment laws  generally  than  that  the  creditor  shall  giv^e  bond 
and  security  in  the  sum  which  the  legislator  has  decided  to  be 
requisite  for  the  indemnification  of  the  defendant  in  such 
damages  as  he  may  suffer  by  reason  of  the  attachment. 
Though  the  amount  be  fixed  by  the  court,  it  will  not  suffice 
unless  the  sum  is  as  great  as  that  required  by  statute.^ 

,  Y.  Conditions. 

§  178.  Defendant. —  The  condition  may  be  broadly  stated  to 
be,  in  all  the  states,  substantially  this :  that  the  obligors  will  in- 
demnify the  defendant  for  any  damages  wrongfully  caused 

and  West  v.  Norfolk,  21  id.  189.  Com-  See  Day  v.  Bach,  87  N.  Y.  57 ;  Dun- 

jxire  Work  v.  Titus,  12  id.  628.  ning  v.  Humphrey,  24  Wend.  31. 

iGriffis  f.  Swick,  12  Pa.  Co.  Ct.  R.  'Ranning  v.  Reeves,  2  Tenn.  Ch. 

389.  263 ;  Bourne  v.  Hocker,  11   B.  Mon- 

^  Bradley  v.  Kroft,  19  Fed.  295.  roe,  21 ;   Shockley  v.  Davis,  17  Ga. 

3  Lehman  v.  Broussard,  45  La.  Ann.  175;  Fellows  v.  Miller,  8  Blackford, 

— .    See  as  to  construction,  Yale  v.  231 ;  Steamboat  Napoleon  v.  Etter,  6 

Cole,  31  La.  Ann.  687 ;  Bank  v.  Byrne,  Ark.  103. 

Sid.   687;    AVilliams  v.  Barrow,  id.  ^  Fjeitas  u.  Coekrem,  101  U.  S.  301 ; 

57;  Graham  V.  Burckhalter,  2  id.  415.  Graham  v.  Burckhalter,  2  La.  Ann. 

■*  Louisville,  etc.  R.  Co.  r.  Lake(Ind.  415.     In  Louisiana  tiie  bond  must  be 

App.)  32  N.  E.  590.  one-half  above  the  amount  claimed. 

5  Miller  v.  Ferrj-,  50  Hun,  256.  Above  cases,  and  Williams  v.  Bar- 

•^  Id. ;  McBride  r.  Bank,  7  Abb.  Pr,  row,  3  La.  57 ;  Jackson  v.  Warwick, 

317 ;  Groat  v.  Gillispie,  25  Wend.  383-  17  id.  436. 


136  attachme:-it  bond.  [§§  IVO,  ISO. 

by  the  attachment.  There  are  different  forms  of  expressin*^ 
it,  and  shades  of  difference  in  the  obligations  required  by  the 
various  statutes.  It  is  frequently  added :  "  not  exceeding  the 
sum  specified  in  the  bond. '  Several  statutes  fix  the  tninimum 
of  the  undertaking.  Most  of  them  fix  the  amount  of  the  bond 
in  relation  to  the  sum  claimed  in  the  declaration,  as  already 
shown.  Costs  are  mentioned  in  several  statutes,  as  well  as 
damages,  but  the  plaintiff  would  be  liable  for  them  when  cast 
in  his  suit,  and  they  would  be  a  part  of  the  damages  for  ob- 
taining the  writ  wrongfully,  if  not  thus  expressed. 

§  179.  Others. —  As  a  rule  the  bond  is  confined  to  the  secur- 
ing of  the  defendant ;  and  when  so,  only  he  can  sue  upon  it.^ 
Some  statutes  do  not  limit  the  obligation  to  indemnify  the 
defendant  but  extend  it  "  to  any  others  interested  in  the  pro- 
ceedings," including  garnishees,  and  third  persons  whose  prop- 
erty has  been  attached  as  that  of  the  defendant.  But  it  is 
held  that  suit  for  damages  must  be  for  the  use  of  the  attach- 
ment defendant,  even  under  such  provisions.^  If  the  bond  is 
executed  to  several  defendants,  all  may  sue  upon  the  bond 
though  only  one  had  his  property  attached.^  It  is  quite  com- 
mon to  execute  a  bond  to  several  defendants  or  to  a  firra.^  It 
should  show  whose  property  is  to  be  attached.^  It  is  held  that 
attachment  bonds  are  assignable.^ 

§  180.  There  is  a  difference  between  the  condition  that  the 
plaintiff  shall  prosecute  his  suit  to  effect  and  pay  all  damages, 
etc.,  and  that  he  shall  prosecute  his  proceeding  in  attachment 
to  effect,  etc.  Under  the  former  an  attaching  creditor  was 
held  liable  though  his  attachment  was  not  contested;''  and 
under  the  latter  it  was  said  that  the  creditor  might  be  liable 
though  the  plaintiff  gained  his  personal  suit.^  In  South  Caro- 
lina the  condition  embraces  both  contingencies :  If  the  defend- 

1  Steinhardt  v.  Lemau,  41  La.  Anu.  Boyd  v.  Martin,  10  Ala.  700.  Com- 
835 ;  Faulkuer  v.  Brigel,  101  Ind.  329 ;  pare  Alexander  v.  Jacoby,  23  Oliio 
Weir    V.    Dustin,   32  III.    App.   388 ;     St.  358. 

Mason  v.   Rice,  66  la.  174 ;  Mitchell  ^Voorhies  v.  Eitong  (Ky.),  22  S.  W. 

V.  Chancellor,  14  W.  Va.  22.  80. 

2  Mitchell  V.  Chandler,  14  W.  Va.  ^Hann  v.  Ruse,  85  La.  Ann.  725. 
22 ;     Davis    v.     Commonwealth,    13  ^  State  v.  Heckert,  49  Mo.  App.  280. 
Gratt.    139 ;    Edwards  v.    Turner,   6  "^  State  v.  Beldsmeyer,  56  Mo.  226. 
Rob.  (La.)  382.  8  Harper  v.  Keyes,  43  Ind.  220. 

3  Sloan    V.   Langert,   6  Wash.   26; 


S>  181,  182.1  PKiNciPAL.  137 

CO  I  -I 

ant  recover  judgment,  or  if  the  attachment  be  set  aside,  etc., 
tlie  plaintiff  will  pay  all  costs  and  damages,  etc.  The  suit 
must  be  decided  against  the  plaintiff  before  the  defendant  can 
sue  on  a  bond  conditioned  that  the  principal  shall  prosecute 
his  action  with  effect.^ 

§  181.  The  pleader  should  substantially  follow  the  statute 
in  stating  the  conditions  of  the  bond,  preferring  any  pre- 
scribed form  therein  to  directions  in  other  parts  of  the  stat- 
ute where  there  is  incongruity.^  He  should  insert  what  is 
necessary  to  identify  the  bond  with  the  suit.''  Anything  that 
would  surely  mislead  the  defendant  with  regard  to  the  suit, 
the  court,  the  return  day,  etc.,  would  render  the  bond  vicious. 
Sli£:ht  mistakes  which  cannot  thus  mislead  would  not  render 
the  bond  fatally  defective  with  respect  to  the  particulars  just 
specified  or  any  others.  If  there  is  strict  compliance  with  the 
statute  in  essentials,  and  a  substantial  compliance  in  non- 
essentials, the  attachment  ought  not  to  be  quashed.  Even  if 
the  mistake  be  somewhat  important,  there  should  be  liberality 
in  the  allowance  of  amendment,  where  the  court  has  discre- 
tion. But  the  conditions  required  must  be  explicitl}'  set  forth 
in  the  bond.* 

YI.  The  Peincipal. 

§182.  Signing. —  The  bond  is  made  and  signed  by  the  at- 
taching creditor  as  the  principal  obligor.  A  disinterested  per- 
son could  not  become  the  principal  within  the  intendment  of 

iHarbert  v.  Gormley,  115  Pa.  St.  ner  t".  Brown,  10  La.  Ana.  334;  Bene- 

237.     Compare  Steen  v.  Ross,  23  Fla.  diet  v.  Bray,  2  Cal.  25 ;  Planters'  & 

480.  Merchants'  Bank  v.  Andrews,  8  Por- 

2McCook  V.   Willis,   28  La.   Ann.  ter,  404.     fi'ee  Houston  v.  Belcher,  12 

448 ;  United  States  v.  Brown,  Gilpin.  Smedes  &  M.  514 ;  Lowry  v.  Stowe, 

155;    Love   v.  Fairfield,  10   111.  303;  7  Porter,  483. 

Mclntyre  v.   White,  5   How.  (Miss.)        ^  Benedict  v.  Bray,  2  Cal.  251 ;  Starr 

298 ;  Lucky  v.  Miller,  8  Yerger,  90 ;  v.   Lyon,   5    Ct.   538 ;    Thompson  v. 

Amos  V.  Allnut,  2  Smedes  &  M.  215 ;  Arthur,     Dudley,    253 ;    Cousins    v. 

Proskey  v.  West,  8  id.  711;  United  Brashier,    1     Blackf.     85;    Ford    v. 

States  V.  Morgan,  3  Wash.  C.  C.  10 ;  Woodward,  10  Miss.  260 ;  Stevenson 

United  States  v.  Gordon,  7  Cr.  287.  v.   Robbins,   5    Mo.    18 ;    Homan     v. 

3  Jaycox  u  Chapman,  10  Ben.  517 ;  Brinkerhofif,  1  Den,  181;  Davis  v. 
Schrimpf  v.  McArdle,  13  Tex.  368 ;  Marshall,  14  Barb.  96 ;  Bank  of  Ala- 
Morgan  V.  Morgan,  4  Gill  &  Johns,  bama  v.  Fitzpatrick,  4  Humph.  311 ; 
395 ;  Briggs  v.  Smith,  13  Tex.  269 :  Briggs  v.  Smith,  13  Tex.  209 ;  Jones 
Laurence  v.  Yeatman,  3  III.  15 ;  Bon-  v.  Anderson,  7  Leigh,  308. 


138  ATTACHMENT    BOND.  [§  183. 

the  law;  certainly  the  courts  cannot  issue  attachments  unless 
the  creditor  himself  is  the  obligor,  where  the  statute  requires 
him  to  become  such.^  A  county,  as  attaching  creditor,  may 
give  bond  and  security.- 

It  is  not  imperative  that  the  plaintiff  or  the  person  inter- 
ested should  actually  sign  the  bond,  but  it  may  be  done  by  an 
agent  duly  authorized,  when  the  principal  cannot  do  so  for 
any  good  reason,  as  in  the  case  of  the  making  of  the  affidavit. 
In  such  case  the  agent  signs  for  the  plaintiff  as  his  attorney 
for  doing  so;  the  act  is  deemed  that  of  the  plaintiff;  the  latter 
is  fully  bound  to  the  defendant,  and  the  requirement  of  the 
law  is  obeyed.^  If  the  suit  is  by  a  firm,  one  of  the  firm  may 
sign  the  partnership  name ;  and  should  he  sign  only  his  own, 
but  appear  as  the  representative  of  the  firm  and  have  author- 
ity to  obligate  the  partnership,  it  would  be  sufficient.*  All 
the  names  of  a  plaintiff  firm  should  be  inserted  once  in  the 
bond,  but  they  need  not  be  repeated.^  It  is  not  a  compliance 
with  the  law  if  a  member  of  a  plaintiff  firm  obligates  only 
himself;  ^  for,  though  such  bond  would  hold  good  against  him, 
the  attachment  ought  to  be  dissolved  upon  application,  for  the 
reason  that  the  interested  firm  is  not  bound,  and  the  defend- 
ant is  not  secured  as  he  is  entitled  to  be. 

§  183.  Not  only  a  member  of  a  firm  representing  himself 
and  his  partners,  but  any  agent  representing  his  principal, 
should  sign  in  the  capacity  in  which  he  appears.  It  must  be 
such  a  signing  as  to  bind  the  principal ;  not  such  as  merely  to 
hold  the  person  making  the  signature.  Such  obligation  satis- 
fies the  law,  especiall}^  where  it  is  provided  that  the  signing 
may  be  done  by  an  agent  or  attorney  of  the  plaintiff.^ 

1  Jones  V.  Anderson,  7  Leigh  (Va.),  ^  Munzenheimer  v.  Manhattan,  etc. 
308 ;    Ford  v.   Hurd,    12   Miss.    683 ;     Co.,  79  Tex.  318. 

Myers  u.  Lewis,  1  McMullen  (S.  C),  6  st^vvart    v.   Katz,    30    Md.    334; 

54;  Mantz  v.  Hendley,  2  Hening  &  Gable  r.  Brooks,  48  id.  108;  Jones  v. 

Munford,  308.  Anderson,  7  Leigh,  308. 

2  State  V.  Fontinberry,  54  Miss.  316.  'Frost  v.  Cook,  8  Miss.  357;  Page 

3  Frost  V.  Cook,  8  Miss.  357 ;  Taylor  v.  Ford,  10  id.  266 :  Ford  v.  Hurd,  12 
V.  Richards,  9  Ark.  378.  id.  683 ;  Dillon  v.  Watkins,  2  Speers, 

*  Churchell  v.  FuUiam,  8  Iowa,  45 ;    445 ;  McCandish  v.  Hopkins,  6   Call, 
Wallis  V.  Wallace,  6  How.  (7  Miss.)    208 ;    Conklin  v.   Goldsmith,   5   Fla. 
254;  Cunningham  v.  Lamar,  51  Ga.     280;  Simpson  v.  Knight,  12  id."  144; 
574;  Kyle  v.  Connelly,  3  Leigh,  719.     Martin  v.  Dortch,  1  Stew.  479;  Stew- 
art V.  Katz.  30  Md.  334. 


§  184.]  PRINCIPAL.  139 

The  true  rule  is  that  the  bond  must  be  signed  and  executed 
so  as  to  bind  the  plaintiff  or  the  party  interested  in  suing  out 
the  attachment;  and  whether  the  assent's  sio^nature  is  suffi- 
cient  for  that  purpose  may  appear,  so  as  to  give  validity  to 
the  bond,  without  his  formal  statement  of  his  real  capacity  — 
provided  that  such  capacity  is,  in  some  way,  apparent  beyond 
controversy  so  as  to  enable  the  defendant  to  sue  the  plaintiff 
upon  the  bond,  should  suit  become  necessary.  Should  the 
bond  show  that  the  plaintiff  is  bound  it  would  be  good,  though 
there  might  be  nothing  in  the  signature  to  show  that  the 
agent  signed  in  any  other  than  his  personal  capacity.^  If  the 
principal  has  not  signed  at  all,  either  personally  or  by  an 
agent,  so  that  the  place  for  his  name  is  left  blank  on  the  in- 
strument, he  may  yet  be  sued  with  his  sureties,  as  though  he 
had  signed ;  for  he  is  a  proper  party  to  a  suit  on  such  bond 
for  damages  for  wrongful  attachment.^  Both  he  and  they 
may  be  sued  together.*  It  has  been  repeatedly  held  that  the 
bond  may  be  good  though  the  principal  did  not  sign  it.* 

§  ISi.  Foiver  of  attorney. —  The  requisite  showing  in  the 
bond  or  the  signature  thereto  is  not  such  as  to  make  the  pro- 
duction of  a  power  of  attorney  necessary.  Doubtless,  in  the 
absence  of  the  plaintiff,  the  court  might  require  the  professed 
agent  to  produce  his  authority  before  granting  the  writ,  but 
it  is  not  usual  to  do  so.  The  fact  of  the  suit  being  prosecuted 
by  the  plaintiff'  upon  the  bond  and  affidavit  filed  shows  that 
he  has  assented  to  them  and  is  acting  as  if  bound  by  them. 
This  creates  a  presumption  in  favor  of  their  authorization 
when  questioned  so  far  as  the  relation  of  the  plaintiff  to  the 
ostensible  agent  is  concerned.^     But  the  court  ought  to  re- 

1  Walbridge  v.  Spalding,  1  Doug.  *  Black  Hills,  etc.  v.  Gardiner  (S.  D.), 
(Mich.)  451;  Page  v.  Ford,  10  Miss.  58  N.  W.  557;  Comp.  Laws,  §  4996; 
266;  Work  v.  Titus,  13  Fla.  628;  Howard  t;.  Manderfield,  31  Minn.  341 ; 
Clanton  v.  Laird,  20  Miss.  568 ;  Mur-  Pierse  v.  Miles,  5  Mont.  551 ;  Lefifing- 
ray  v.  Cone,  8  Port  250 ;  Frost  v.  well  v.  Chave,  19  How.  Pr.  57.  Com- 
Cook,  7  How.  (8  Miss.)  357;  Grand  pare  Bank  v.  Sterling  (S.  C),  9  S.  E. 
Gulf  R  E.  &  B.  C.  Co.  V.  Conger,  9  1028. 

Smedes  &  M.  505.  5  Jacobs  v.  Hogan,  85  N.  Y.  243  ; 

2  Hoskins  v.  White  (Mont.),  33  P.  Jackson  v.  Stanley,  2  Ala.  336 ;  Pierce 
163.  V.   Strickland,  2  Story,  292 ;  Lindner 

3Id. ;  Mcintosh  v.  Hurst,  6  Mont  v.  Aaron,  5  How.  (Miss.)  581;  Taylor 
287;  Pierse  v.  Miles,  5  id.  549;  Jen-  v.  SuLt  6  La.  Ann.  709;  Wood  v. 
nings  I'.  Joiner,  1  Cold.  645.  Squiers,  28  Mo.  528 ;  Mason  v.  Setw- 


140  ATTACHMENT    BOND.  [§  185. 

quire  that  the  bond  be  complete  in  itself  before  issuing  the 
writ ;  and  the  defendant,  in  case  he  should  have  to  sue  upon 
the  bond,  ought  not  to  be  subjected  to  the  necessity  of  pro- 
ducing other  evidence  that  the  plaintiff  is  bound  by  it. 

§  185.  Bi/  attorney  at  law. — ^  Where  the  bond  may  be  signed 
for  the  plaintiff  by  his  attorney,  it  is  not  uncommon  that  his 
attorney  at  law  represents  him,  signing  only  in  his  professional 
capacity.^  But  one  who  is  licensed  as  attorney  to  represent, 
in  a  professional  way,  all  who  employ  him,  is  not  thus  author- 
ized to  bind  his  client  beyond  the  scope  of  his  employment 
Though  engaged  to  institute  and  prosecute  an  attachment 
suit,  he  is  not  therefore  empowered  to  bind  his  client  by  sign- 
ing an  attachment  bond  for  him.  It  cannot  truly  be  said  that 
the  execution  by  him  of  such  a  bond  is  an  incident  of  his  em- 
ployment. Though  it  has  been  judicially  said  that  the  sign- 
ing of  the  bond  by  an  attorney  at  law  is  an  act  of  administra- 
tion—that it  is  indispensable  to  secure  the  rights  of  the 
client  —  that  the  attorney  at  law  of  the  plaintiff  is  his  manda- 
tary for  the  purpose  of  collecting  the  debt  by  process  of  law  — 
that  the  signing  of  the  bond  is  a  necessary  incident  to  the 
collection  —  and  that  it  is  embraced  in  the  general  power 
given  by  the  client  to  his  attorney  at  law,^  yet  it  must  be  de- 
nied that  a  bond  thus  executed  would  bind  the  client,  should 
he  not  ratify  it  by  proceeding  with  the  litigation  thereunder. 
The  court  might  accept  such  a  bond  on  the  presumption  that 
a  licensed  attorney  acted  within  his  authority  when  signing 
ostensibly  for  his  principal;  but  in  case  of  a  suit  upon  the 
bond,  the  client  could  not  be' held  if  there  should  be  no  other 
evidence  of  authoritj'-  on  the  part  of  the  attorney  than  his 
employment  as  the  lawyer  of  a  client  who  had  repudiated  his 
act  of  signing  before  an}?"  proceeding  thereon.  Certainly  the 
lawyer  should  have  power  conferred,  beyond  that  given  by 
his  license  and  his  engagement  as  attorney  in  the  cause,  though 

art,  6  La.  Ann.  736;  Goddard  v.  Cun-  597;  Wright   v.   Smith,   19  id.  297; 

niugham,  6    Iowa,    400 ;    Brooks    v.  Messner  v.  Lewis,  20  id.  221. 

Poirier,   10  La.    Ann.  512;    Spear  v.  i  Foulks  u.  Falls,  91  Ind.  315,  321; 

King,  14  Miss.  (6  Sniedes  &  M.)  276 ;  Trowbridge  v.  Weir,  6  La.  Ann.  706. 

Narraguagus  v.  Wentworth,  36  Me.  -  Wetmore  i\  Baffin,  5    La.  Ann. 

339 ;    Alf ord  v.   Johnson,   9   Porter,  496 ;  Schoregge  v.  Gordon,  29  Minn. 

320  {see  Williams  v.  Reed,  3  Mason,  387. 
405);  Messner  v.   Hutchins,  17  Tex. 


§  1S6.]  SUKETY.  141 

the  power  need  not  be  evidenced  by  any  written  instrument. 
If  ruled  into  court  to  show  the  authority  under  which  he  acted 
in  signing-  the  bond  for  his  client,  the  attorney  at  law  could 
not  make  an  adequate  showing  by  merely  producing  his 
license  and  proving  his  engagement  as  the  plaintiff's  lawyer 
in  the  case.  Though  the  attachment  proceedings  might  not 
be  quashed  for  want  of  the  proper  showing  upon  such  a  rule, 
after  some  progress  in  the  suit  had  been  made  under  a  bond 
thus  executed,^  it  is  because  the  plaintiff,  by  thus  going  on,  is 
understood  to  have  assented  to  the  attorney's  action  and  to 
have  become  bound  thereby.  Even  were  they  quashed  on 
this  ground  after  some  progress,  at  the  instance  of  the  defend- 
ant, the  plaintiff  would  be  held  obligated  by  such  a  bond  on 
account  of  his  acquiescence  during  such  progress.^  And  this 
reasoning  applies  to  bonds  executed  by  other  attorneys  than 
those  at  law,  who  sign  without  being  previousl}^  authorized 
by  their  assumed  principals,  in  some  way,  but  whose  action  is 
subsequently  ratified  expressly  or  impliedly. 

YII.  The  Sueety. 

§  186.  Signature. —  The  surety  must  sign  w^ith  the  principal, 
obligating  himself  to  pay  if  the  plaintiff  does  not.  He  must  be 
a  resident  of  the  state,  in  solvent  circumstances,  able  to  meet 
his  obligation. 

He  should  sign  personally.  If  he  sign  through  an  agent, 
the  authority  of  the  latter  should  be  made  to  appear ;  for  the 
surety,  not  being  a  party  to  the  suit,  could  not  be  said  to  ac- 
quiesce in  the  action  of  the  agent  by  reason  of  the  progress 
of  the  cause  —  he  not  being  presumed  to  have  known  of  such 
progress  or  even  of  the  execution  of  the  bond.  An  agent 
who  has  signed  for  the  principal  should  not  also  sign  for  the 
surety.*  If  the  plaintiff's  attorneys  sign  the  bond  as  sureties 
for  him,  the  bond  is  not  void,  though  their  signing  be  contrary 
to  a  rule  of  court.^ 

1  Mandel  v.  Peet,  18  Ark.  236 ;  Dove        2  Messner  v.   Lewis,  20  Tex.   221 ; 
V.  Martin,  23  Miss.  588;  Bank  of  Au-    Peiser  v.  Cushman,  13  id.  390. 
gusta  V.  Conrey,  28  id.  667 ;  Peiser  v.        »  Marshall  v.  Revisies,  22  Fla.  583. 
Cushman,  13  Tex.  390.  ^  Rogers  v.  Burbridge  (Tex.  App.), 

24  S.  V/.  300. 


1-12  ATTACHMENT   BOND.  [§§.187,188. 

§  187.  Signing  firm  name. —  If  he  who  signs  as  surety  the 
name  of  his  firm  does  not  produce  authority  so  to  do,  he  docs 
not  bind  the  firm  unless  the  articles  of  partnership  go  beyond 
the  usual  contract  and  empower  the  members  of  it  (or  at  least 
the  member  so  signing)  to  obligate  the  firm  in  this  way,  ex- 
cept on  presumption  of  authority.  He  would  bind  himself, 
but  not  necessarily  the  partnership  to  which  he  belongs.^  If 
he  is  competent  to  sign,  so  far  as  residence,  solvency,  pecun- 
iary ability,  proper  age,  etc.,  are  concerned,  the  bond  would 
be  good;  and  the  defendant  could  not  successfully  attack  it 
on  the  ground  that  the  surety  had  not  signed  his  own  name 
but  that  of  his  firm.  The  firm  style  includes  his  own  name. 
In  seeking  to  bind  all  he  binds  himself.  And,  should  the 
defendant  not  complain,  the  surety  himself  cannot,  for  he 
must  stand  by  his  own  act.^  Between  himself  and  his  part- 
ners, however,  all  the  members  would  be  bound  for  their 
equal  portion,  should  he  have  to  pay,  if  he  signed  with  their 
knowledge  or  subsequent  acquiescence. 

It  is  not  uncommon  for  principals  and  sureties  to  sign  firm 
designations  to  bonds  instead  of  the  names  of  the  members  of 
the  partnership,  and  it  is  usually  allowed  without  objection 
from  the  courts  or  the  defendants;^  but,  as  remarked,  this 
binds  only  the  person  signing,  unless  the  firm  has  given  him 
authority.  But  it  has  been  held  that  his  authority  may  be 
presumed.* 

§  188.  Qualifications  and  nuniher  of  sureties. —  Solvency, 
residence  within  the  state,  lawful  age,  etc.,  are  presumed  till 
the  contrary  is  made  to  appear.  Such  facts  need  not  be  stated 
in  the  bond,  though  the  statute  may  expressly  require  such 
qualifications  in  a  surety.  If  the  statute  requires  sureties, 
more  than  one  should  be  given  provided  no  other  construc- 
tion of  the  meaning  is  permissible ;  but,  the  object  of  the 
legislature  being  to  secure  the  defendant  and  ultimately  in- 

iGray  v.   Steedraan,   63  Tex.  95;  s  Raymond  v.  Green,  13  Neb.  315; 

Jeffreys    v.    Coleman,    30  Fla.    536.  Danforth  v.  Carpenter,  1  Iowa,  546 ; 

These    cases  show  that  the  signor  Churchill  v.   Fulliam,  8  id.  45.     See 

would   be   bound,   and    usually   the  Bennett  v.  Zabriski,  3  New  Mex.  176. 

other  members  whom  he  assumes  to  ■*  Donnelly  v.   Elser,   69  Tex.  383 ; 

represent.  Cunningham  v.  Lamar,  51  Ga.  574. 

2  Thatcher  v.  Goff,  13  La.  360. 


§  189.]  SUKETY.  143 

clemnify  hira  against  loss,^  one  good  surety  will  be  sufficient, 
notwithstanding  the  words  of  the  statute,  in  those  states 
where  singular  and  plural  numbers  are  legally  interchangeable 
for  the  purpose  of  statute  construction.'  And  where  the 
courts  are  not  expressly  accorded  this  latitude  of  construction, 
one  surety  may  suffice  unless  it  is  clearly  the  meaning  of  the 
statute  that  there  should  be  more  for  the  better  protection  of 
the  defendant.  But  if  two  sureties  be  required  literally,  and 
only  one  be  given,  the  omission  is  fatal.*  When  bond  and 
surety  for  double  the  amount  of  the  claim  is  requisite,  there 
may  be  two  sureties,  each  separately  obligating  himself  for  the 
amount  of  the  claim;  that  is,  each  taking  half  of  the  required 
obligation  —  in  Florida.* 

If  there  is  but  one  name  signed  to  an  attachment  bond,  it 
will  be  deemed  that  of  the  surety  when  the  body  of  the  bond 
and  the  pleadings  of  the  case  disclose  another  as  that  of  the 
plaintiff;  and  the  bond  will  not  be  fatally  defective  because 
the  attaching  plaintiff  has  not  signed  it,  since  he  is  under  ob- 
ligation as  principal  whether  he  signs  or  not.^  The  omission 
of  the  surety's  name  in  the  body  of  the  bond  is  not  fatal ; 
his  signature  would  bind  him  notwithstanding  such  omission.^ 

§  189.  Obligation. —  When  the  surety  binds  himself  to  "pay 
all  costs  that  may  be  adjudged  to  the  defendant  and  all  dam- 
ages which  he  may  sustain  by  reason  of  the  attachment,"  he 
may  be  held  for  the  defendant's  disbursements  duly  allowed^ 
He  cannot  be  held  for  a  greater  sum  than  that  specified  in  the 
bond ;  and,  if  his  principal  has  paid  part  of  that,  the  surety 

1  Adams  v.  Jacoway,  34  Ark.  542.  (Tex.  App.),  22  S.  W.  225.     If  there 

^  Elliot  V.  Stevens,  10  Iowa,  418 ;  are  two  names,  and  two  sureties  are 

Bryant  V.  Hendee,  40  Mich.  543.  required,  both  may  be  sureties.  How- 

3  Spettigue  v.  Hutton,  9  Pa.  Co.  Ct.  ard  v.  Mandefield,  31  Minn.  337.   The 

R.  156.  names  of  sureties  need  not  be  in  the 

*  May  V.  Gamble,  14  Fla,  467.  body   of  the  bond.     San  Roman  v. 

5  Bait.  &  O.  R.  R.  Co.  v.  Taylor,  81  Watson,  54  Tex.  258. 

Ind.  24 ;  Eckman  v.  Hammond,  27  ^  ^JcLain  v,  Simiugton,  37  Ohio  St. 

Neb.   611;  Whitman,   etc.    Ass'n    v.  484,  explaining  Stephens  u  Allmen, 

National,  etc.  Ass'n,  45  Mo.  App.  90.  19  id.  485. 

His  name  could  be  inserted  by  way  "^  Under  §  144  of  the  Oregon  Civil 
of  amendment,  if  necessary.  Athan-  Code  it  was  held  that  the  surety  was 
issen  v.  Towing  &  Wrecking  Co.  obligated  for  such  disbursements 
(Ga.),  17  S.  E.  951.  If  three  names  though  not  all  incurred  by  the  de- 
are  signed,  the  latter  two  will  be  pre-  fendant  in  the  attachment  suit.  Bing 
sumed  sureties.     Weis  v.   Chipman  Gee  v.  Ah  Jim,  7  Saw,  C.  C.  117. 


144  ATTACHMENT   BOND.  [§  190. 

remains  liable  only  for  the  balance.^  And  the  whole  amounfc 
can  be  collected  only  in  case  of  total  loss.  The  measure  of 
damage  is  the  pecuniary  loss  caused  the  defendant  by  deprival 
of  the  use  of  his  property,  by  an  injury  done*  to  it,  by  any 
waste,  etc.,  and  also  by  the  expense  of  defending  it.^  Sureties 
have  been  held  answerable  for  the  costs  and  disbursements  of 
the  obligee,  not  only  in  his  defense  against  a  wrongful  attach- 
ment, but  also  in  his  prosecution  of  an  action  on  the  bond  for 
damages.^ 

§  100.  The  obligors,  when  sued,  cannot  plead  that  the  bond 
was  filed  after  the  writ,^  or  that  a  part  of  the  condition  was 
omitted.^  They  are  not  liable  beyond  the  penalty  of  the  bond.''* 
The  plaintiff  in  the  suit  may  be  liable  for  much  more,  but  not 
as  principal  on  the  bond  in  a  bond  suit.  The  obligors  are  not 
released  by  a  judgment  in  the  trial  court  in  favor  of  the 
plaintiff,  if  it  be  reversed  on  appeal  and  rendered  against  him.^ 
The  sureties  may  be  liable  though  the  bond  be  defective  as 
between  the  parties  to  the  suit.^  And  they  may  be  liable 
though  the  attachment  Avas  illegally  issued.^  The  condition 
of  the  bond  is  that  the  plaintiff  and  sureties  will  pay  damages 
caused  if  the  order  of  attachment  was  illegally  obtained,  in 
several  states.  But  w^here  bond  is  not  required  of  a  state  as 
attaching  creditor,  it  was  held  that,  though  such  bond  was 
given,  the  sureties  were  not  liable  thereon.'"  So  when  bond 
w^as  not  required  of  a  city.'' 

In  a  suit  upon  an  attachment  bond  the  complainant  alleged 
that  the  principals  gave  the  bond  and  that  the  sureties  were 
their  co-defendants.  The  complaint  was  defective  for  not 
averring  that  the  sureties  executed  the  bond  as  well  as  the 
principals.'^ 

1  Baere  v.  Armstrong,  62  How.  (N.  Hibbs  v.  Blair.  14  Pa.  St.  413 ;  State 

Y.)  Pr.  515  (26  Hun,  19).  v.  Berry,  12  Mo.  376. 

-  Boatwright  v.  Stewart,  37   Ark.  ^  Zechman    v.  Hank,  85  Wis.  6")6 

614.  (distingidsJiing  Shelvin  v.  Whelen,  41 

3Bing  Geeu  Ah  Jim,  7  Saw.  117.  id.  88,  and  approving  Bittingsby  r. 

4  Sumpter  v.  Wilson,  1  Ind.  144.  Harris,  79  id.  103,  and  Love  v.  Rock- 

5  Hibbs  V.  Blair,  14  Pa.  Stw  413.  well,  1  id.  387) ;  Union  Mercantile  Co. 

6  McCullough  V.   Walton,  11   Ala.  v.  Chandler  (Iowa),  57  N.  W.  595. 
492 ;  Hill  v.  Rushing,  4  id.  212,  lo  Renkert  v.  Elliott,  11  Lea.  235. 

'  Ball  V.  Gardner,  21  Wend.  270.  "  Morgan  v.  Menzies,  60  Cal.  341. 

8  Shepherd  v.  Collins,  12  Iowa,  570 ;       i-'  Church  v.  Campbell  (Wash.),  35  P. 

381. 


§§  191,  192.]  SUBETY.  145 

The  surety,  being  concerned  in  the  result  of  the  suit,  could 
not  be  a  witness  for  the  plaintiff  where  interest  renders  wit- 
nesses incompetent  to  testify ;  and,  where  it  does  not,  the  fact 
of  being  pecuniarily  liable  in  case  the  attachment  should  injure 
the  defendant  would  affect  the  credibilit}^  of  the  surety  as  a 
witness.  In  such  case,  may  the  plaintiff  release  him  and  sub- 
stitute another  surety?  With  the  assent  of  the  defendant  he 
may;  and,  if  no  liability  has  yet  occurred,  the  court  may  per- 
mit the  exchange,  under  such  circumstances,  even  without 
such  assent. 

§  191.  Additional  security. —  May  additional  securitx'-  be 
given  by  the  plaintiff  if  the  one  first  given  has  subsequently 
become  insolvent?  The  law  ogives  him  his  right  of  action;  he 
has  complied  with  the  requirement  that  good  and  solvent  se- 
curity should  be  given ;  it  is  owing  to  no  fault  or  laches  of  his 
that  he  now  finds  himself  without  a  firm  foundation :  why 
should  he  not  be  allowed  to  offer  a  new  bondsman?  Clearly 
it  is  the  right  of  the  defendant  to  have  the  attachment  dis- 
solved because  of  the  insufficiency  of  the  bond,  w^henever  it 
shall  become  insufficient,  at  any  stage  of  the  cause;  and  there- 
fore the  plaintiff  should  be  accorded  the  right  of  maintaining 
his  cause  by  repairing  what  has  become  defective  through  no 
fault  of  his.  Of  course  the  case  would  be  altogether  different 
if  the  bondsman  was  worthless  from  the  start  and  the  plaintiff 
has  only  discovered  the  fact  after  the  institution  of  the  suit. 
In  such  case  he  must  suffer  the  result.  His  suit  may  be  dis- 
solved upon  application  of  the  defendant  in  a  legal  way,  and 
the  plaintiff  cannot  repair  the  breach  at  the  expense  of  his 
opponent. 

§  192.  Suppose  the  surety  to  be  sound  at  first  but  insolvent 
subsequently,  and  the  plaintiff  should  not  tender  other  and 
better  surety;  may  the  defendant  (instead  of  moving  to  quash, 
or  filing  a  plea  in  abatement)  take  a  rule  on  the  plaintiff  to 
make  him  give  a  new  bondsman?  The  defendant  may  not 
choose  to  have  the  proceedings  quashed  at  this  stage.  The 
plaintiff  may  be  insolvent  as  well  as  the  surety;  and,  if  so, 
what  recompense  is  the  defendant  to  have  for  the  wrong  done 
him  in  case  of  an  illegal  and  pecuniarily  disastrous  attachment? 
The  suit  may  have  been  of  several  months  standing;  a  steam- 
boat, ship  or  other  valuable  property  may  have  been  in  custody 

10 


146  ATTACHMENT   BOND.  [§§  193,  194. 

of  an  officer  under  the  attachment  seizure,  causing  great  loss; 
and  now  must  the  defendant  be  told  that  his  only  course  is  to 
get  rid  of  the  attachment  and  recover  his  property  without 
any  indemnification  for  loss? 

In  any  state  where  these  questions  are  not  solvable  by  statute 
provisions,  they  should,  in  justice  and  reason,  be  answered  so 
that  no  wrong  can  be  done  to  either  plaintiff  or  defendant ;  i.  e., 
new  bondsmen  should  be  substituted  upon  application  of  either 
party. 

§  193.  The  plaintiff  must  lie  on  the  bed  he  has  made.  He 
cannot  substitute  one  surety  for  another  as  a  matter  of  right, 
nor  can  the  court  confer  sucji  right  when  the  bond  was  worth- 
less ah  initio  hy  reason  of  the  insolvency  of  the  surety,  unless 
such  power  is  given  to  the  court  by  statute.  The  conferring 
of  such  authorit}^  to  be  exercised  in  case  of  the  death  of  the 
surety,  or  his  removal  from  the  state,  or  his  insolvency,  or  his 
likelihood  to  become  insolvent,  is  found  in  the  statutes  of  at 
least  one  state ;  in  some  others  the  authority  is  not  so  broad.^ 

Although  the  subject  of  the  amendment  of  bonds  includes 
the  subject  of  the  bettering  of  the  securit}^  the  substitution  of 
a  good  bondsman  for  one  who  has  ceased  to  be  sufficient  since 
he  was  given  and  accepted  rests  upon  somewhat  different 
grounds  than  other  forms  of  emendation. 

The  substitution  of  a  sufficient  bondsman  for  an  insufficient 
one  cannot  be  made  by  the  supreme  court  when  the  case  is 
there  on  appeal.^ 

YIII.  Amendment. 

§  194.  Before  issue  of  the  ivrit- —  Prior  to  the  issuance  of 
the  writ  there  is  no  reason  why  the  plaintiff  may  not  amend 
a  defective  bond.  Though  the  affidavit,  bond  and  petition 
have  been  filed,  he  ought  to  be  allowed  by  the  court  to  amend 
any  one  of  these,  as  a  matter  of  course,  when  no  action  has 
been  taken  upon  his  prayer.  Should  the  court  refuse  to  al- 
low this,  he  may  withdraw  his  suit  and  make  such  amend- 
ment as  he  chooses  to  make,  and  institute  it  again.     It  is  the 

1  Van  Arsdale  v.  Krum,  9  Mo.  397 :  ciency  of  the  bond ;  Branch  of  State 
the  statute  extending  to  any  insuffi-    Bank  v.  Morris,  13  Iowa,  136. 

2  Durham  v.  Lisso,  33  La.  Ann.  415. 


§  195.]  AMENDMENT.  147 

proper  course  for  him  to  pursue  in  such  a  case.  It  is  far  bet- 
ter than  to  go  on  and  find  at  a  later  stage  that  his  proceeding 
has  fatal  and  incurable  defects.  And  in  nothing  is  it  more 
important  than  with  respect  to  the  bond  that  he  should  be 
clearly  within  the  law.  If  there  are  defects  with  regard  to 
the  surety's  signature,  solvency  or  competency ;  the  amount 
or  conditions  or  form  of  the  bond,  or  any  other  matter,  the 
plaintiff  ought  to  make  all  sure  before  the  issuing  of  the  writ, 
while  it  is  in  his  power  to  discontinue  and  begin  anew,  should 
the  court  refuse  to  permit  him  to  make  the  necessary  changes. 

§  195.  After  issue  of  the  tvrit. —  If  the  bond  is  required  to 
be  double  the  claim  and  has  been  given  only  to  the  amount 
claimed,  it  is  held  in  Georgia  that  the  plaintiff  cannot  reduce 
his  claim  to  one-half  the  sum  of  the  bond,  after  the  issue  of 
the  writ,  and  thus  validate  the  attachment.^  The  amendment 
would  not  operate  as  though  made  before  the  issue.  But  in 
Iowa  an  amendment  of  the  bond,  under  leave  of  writ,  has 
been  held  as  though  made  before  the  writ.-  In  some  states 
a  defective  bond  has  been  replaced  by  a  new  one.^  Mere  ir- 
regularities in  the  bond  do  not  avoid  a  judgment  rendered.* 

A  plaintiff,  finding  his  attachment  bond  invalid,  moved  to 
amend  it.  The  defendant  opposed  the  naotion,  and  the  attach- 
ment was  dismissed,  and  judgment  rendered  for  the  defend- 
ant.    Equity  would  not  enforce  liability  on  such  ground.^ 

In  'New  York  attachment  bonds  have  been  filed  nunc  pro 
tunc  in  several  instances.^  To  give  them  effect,  however,  the 
filing  should  be  on  motion  of  the  plaintiff.  Any  amendment 
after  the  issue  of  the  writ  should  be  by  his  instigation  or  con- 
sent, and  also  the  consent  of  the  surety;  and  the  record  should 

1  Lockett  V.  Newfoille,  55  Ga.  453.  National,  etc.  Ass'n,  45  Mo.  App.  90; 
See  Bodet  v.  Nibourel,  25  La.  Ann.  McDonald  v.  Fist,  53  Mo.  343 ;  Jas- 
499.  per  Co.  v.  Chenault,  38  id.  357 ;  Jack- 

2  Branch  Bank  v.  Morris,  13  Iowa,  son  v.  Stanley,  2  Ala.  326. 

136.     See  Potter  v.    Baker,   4  Paige  « Kramer   v.  Willendorff,    129  Pa. 

(N.  Y.),  290.  St.  547. 

3  Adams  v.  Kellogg,  63  Mich.  105 ;  5  Booker  v.  Smith,  38  S.  C.  228. 
Kidd  V.  Dougherty,  59  id.  240 ;  Bry-  ^  Leffingwell  v.  Chave,  15  How.  Pr 
ant  V.   Hendee,  40  id.   543;  Hills  v.  54;  Mills    v.    Thursby,    11    id.   129 
Moore,  id.  210 ;  Torrent  v.  Booming  Croghan  v.  Livingston,  17  N.  Y.  218 
Co.,  21  id.   157 ;  McClintock  v.  Laig,  Milbank  v.  Broadway  Bank,  3  Abb. 
19  id.   305 ;  Whitman,  etc.  Ass'n  v.  (N.  S.)  223. 


148  ATTACHMENT    BOND.  [§  196. 

show  such  consent.^  It  is  usually  a  favor  to  the  plaintiff  to 
be  allowed  to  amend,  or  substitute  a  new  bond.  It  has  been 
held  that  he  should  be  allowed  to  do  so  before  the  attachment 
can  be  dissolved  for  a  defective  bond.^ 

§196.  When  other  interests  than  the  plaintiff's  have  inter- 
vened, the  plaintiff  cannot  change  his  bond  as  a  matter  of 
right.  The  defendant  is  entitled  to  a  good  bond,  but  his  right 
to  dissolve  the  attachment  because  such  has  not  been  tend- 
ered is  not  to  be  defeated  by  an  order  of  court  permitting  the 
plaintiff  to  amend.^  Where  the  court  has  authority  to  make 
such  order  upon  application  of  the  plaintiff,  there  must  have 
been  statutory  creation  of  the  jDower;*  and  though  such 
power  has  been  conferred,  it  is  far  better  that  the  attaching 
creditor  be  in  a  situation  not  to  invoke  it,  since  there  is  al- 
ways a  question  whether  the  court  will  feel  obliged  to  exer- 
cise such  authority  in  any  given  case.  It  is  not  safe  for  him 
to  risk  a  defective  bond,  though  it  be  such  as  to  hold  in  case 
the  defendant  takes  no  proceedings  to  quash  after  first  giving 
him  opportunity  to  make  the  bond  good.* 

1  Shaw  V.  Lawrence,  14  How.  Pr.  483 ;  Jackson  v.  Stanley,  3  Ala.  336 ; 

94 ;  Wilson  v.  Allen,  3  id.  369.  Conklin    v.    Harris,   5  id.   313.    See 

-  Henderson  v.  Drace,  30  Mo.  358 ;  Tyson  v.  Lansing,  10  La.  444. 
Irvin  V.  Howard,  37  Ga.  18.  ^  Erwin   v.   Ferguson,  5  Ala.  158 ; 

3  East,  etc.  Co.  v.  Warren,  78  Tex.  Benedict  v.  Bray,  3  Cal.  351 ;  Lea  v. 

318.     In  Missouri  the  suit  is  not  d is-  Vail,  3  111.(3  Scam.)  473;  Wood  v. 

missed  because  the  bond  is  insuffi-  Squiers,   38  Mo.    538 ;   Beardslee  v. 

cient,   until    opportunity    has    been  Morgan,   39   id.   471 ;    Henderson   v. 

given  to  tile  another.     Curnmings  v.  Drace,  30  id.   358 ;  Starr  v.   Lyon,  5 

Denny,  6   Mo.  App.   603.     Otherwise  Ct.  538 ;  Planters'  &  Merchants'  Bank 

in  Florida,     Roulhac  v.  Rigby,  7  Fla.  v.   Andrews,    8    Porter    (Ala.),   404 ; 

336.  Lowe  v.  Derrick,  9  id.  415 ;  Scott  v. 

4Proskey  v.  West,  16  Miss.  (8  S.  &.  Macy,  3  Ala.  350;  Oliver?;.  Wilson,  39 

M.)  711 ;  Van  Arsdale  v.  Krum,9  Mo.  Ga.  643;  Irwin  v.  Howard,  37  id.  18; 

397 ;  Jasper  County  v.  Chenault,  38  Tevis  v.  Hughes,  10  Mo.  380. 
id.  357;   Lowry  v.  Stone,   7  Porter, 


CHAPTER  YI. 

PROCESS. 

I.  The  Summons §§  197-203 

II.  The  Writ 204-207 

III.  Issuance  of  the  Writ 208-211 

IV.  Eequisites  of  the  Writ 212-219 

V.  Amendment 220-226 

VI.  The  Writ  as  to  Property 227-231 

VII.  The  Writ  Protecting  the  Officer 232-236 

VIII.  Indemnity  Bond 237-245 

I.  The  Summons. 

§  197.  Ordinary  form. —  The  summons  issued  to  the  de- 
fendant in  an  attachment  suit  differs  in  no  respect  from  that 
issued  in  a  suit  to  recover  debt  in  which  there  is  no  writ  of 
attachment  issued.  It  will  therefore  be  unnecessary  to  dwell 
long  on  the  subject.  When  the  defendant  is  reached,  being 
either  personally  served  or  served  by  the  leaving  of  the  sum- 
mons at  his  domicile  with  one  legally  competent  to  receive  it 
for  him,  the  personal  suit  against  him  is  fully  instituted,  and 
may  be  prosecuted  to  judgment  for  the  full  amount  claimed 
in  the  petition.  A  statute  providing  that  "  at  or  after  the 
commencement  of  the  action  "  the  writ  of  attachment  may  be 
issued,  it  was  held  that  the  filing  of  the  petition  and  issuance 
of  summons  was  commencement}  And  when  a  cop}^  of  the 
writ  of  attachment  is  served  upon  him  (or  left  as  before  stated 
with  regard  to  the  summons),  and  property  of  his  is  attached, 
the  attachment  suit  is  fully  brought  and  may  be  prosecuted 
to  judgment  with  judicial  recognition  of  the  lien  or  privilege 
created  by  the  attachment. 

§  198.  Acceptance  of  service  by  the  defendant  would  obvi- 
ate the  necessity  of  a  summons;  so  would  his  voluntary  gen- 
eral appearance  in  the  absence  of  citation ;  but  the  writ  of 
attachment  and  its  execution  by  the  seizure  of  property  is  no 

1  Cofifman  v.  Brandhoefer,  33  Neb.  279. 


150  TROCESS.  [§  199. 

substitute  for  summons.  It  is  not  such  either  with  reference 
to  the  personal  or  to  tlie  property  action.  However,  the  writ 
might  answer  as  a  summons  if  served  on  the  defendant,  even 
though  defective  as  a  writ.^  On  the  other  hand,  the  summons 
may  supply  a  defect  of  the  writ  in  some  respects.  When  the 
latter  was  not  in  the  name  of  the  commonwealth  as  required, 
it  was  yet  sustained  because  the  summons,  on  the  obverse 
side,  was  in  that  name,  and  the  previous  practice  had  been  to 
issue  the  writ  in  this  form.^  In  Pennsylvania  it  has  been  held 
that  foreign  attachment  is  mesne  process,  "  equivalent  to  a 
summons  for  the  commencement  of  a  personal  action."  ^ 

§199.  Personal  service. —  The  statutes  are  uniform"  in  all 
the  states  in  the  requirement  that  effort  be  made  to  effect 
personal  service  upon  the  party  charged  as  defendant.  There 
is  nothing  in  this  different  from  the  practice  in  personal  suits 
generally,  when  the  personal  character  of  the  attachment  suit 
is  considered.  At  this  stage  the  suit  is  nothing  more  than  a 
personal  one  where  the  statute  requires  that  the  summons 
shall  be  issued  before  the  writ  of  attachment.*  The  summons 
when  served  brings  the  defendant  into  court,  though  the  levy 
may  not  have  been  made.^  If  it  has  been  served  in  the  per- 
sonal action  it  need  not  be  repeated  in  an  ancillary  attach- 
ment proceeding  to  aid  the  original  suit.^  But  where  the 
writ  is  issued  with  the  summons  the  proceeding  already  pos- 
sesses a  dual  character.  In  such  case  the  summons  has  refer- 
ence to  the  ancillary  suit  as  well  as  to  the  principal.  It  need 
not  contain  any  express  reference  thereto,  since  the  service 
of  the  attachment  writ  conveys  all  the  necessary  notice  re- 
garding it  to  the  defendant  when  it  is  served  upon  him.  At- 
tachment may  precede  summons  unless  the  statute  forbids.'' 

1  Wasson  v.  Cone,  86  111.  46 ;  Rice  Ann,  467 ;  Speigelberg  v.  Sullivan,  1 

V.  Dale,  45  Ark.  34 ;  Weil  v.  Kittay,  New  Mex,  575.     Summons  to  appear 

40  id,  528.  in  a  given  county,  without  naming 

-  Northern  Bank  v.  Hunt's  Heirs  the  town,  was  held  good.     Beseman 

(Ky.),  19  S,  W.  3.  V.  Weber,  53  Minn.  174, 

3  Cornman's  Appeal,  90  Pa.  St.  254.  5  Sanderson  v.  Taylor,  64  N.  H.  97. 

^Kelley  v.  Stanley,   86  Ky.  240;  6  Bailey  z?.  Valley  Bank,  137  IlL  382  • 

Civ.  Code,  §  194;  Hall  v.  Grogan,  78  Rutledge  v.  Stribling,  26  111.  App.  353. 

Ky.  11,     The  attachment  is  void  if  "Schuster  v.  Rader,  13  Colo.  329; 

granted  before  the  summons.     Sum-  American  Bank  v.  Voisin,  44  Hun,  85  ,* 

mons  should  be  personal  or  at  the  Stoiber  u,  Thudmm,  id.  70.  SeeHoag- 

domicile.    Walker  v.  Barrelli,  32  La,  land  v.  Wilson  (Neb,),  60  N,  W.  376. 


§8  200,  201.]  SUMMONS.  151 

CO  '  J 

§  200.  The  ancillary  suit,  however,  cannot  be  said  to  be  in- 
stituted against  the  defendant's  property  so  as  to  be  binding 
upon  him,  unless  the  defendant  be  served  or  notified  by  pub- 
lication after  an  effort  to  serve  has  failed.  The  necessity  of 
summons  is  not  obviated  by  filing  the  writ  or  recording  a  de- 
scription of  the  property  attached.^  If  the  defendant  is  not 
served  and  it  is  not  shown  that  he  cannot  be  found,  the  attach- 
ment falls.^  Herein  this  suit  differs  from  a  libel  suit  against 
a  thing  irrespective  of  the  owner.  In  the  latter  summons  is 
never  issued.  The  reason  is  there  is  no  personal  defendant 
to  be  served. 

The  summons  in  an  attachment  suit  is  directed  to  and  re- 
stricted to  the  personal  debtor  or  debtors  named  in  the  peti- 
tion as  defendant  to  the  action.^  It  is  not  directed  to  persons 
holding  liens  on  the  attached  property  or  otherwise  interested 
in  it.    The  proceeding  does  not  necessarily  affect  their  rights. 

§201.  Relative  to  the  attachment. —  A  summons  not  good 
in  the  personal  action  is  not  good  with  respect  to  the  ancil- 
lary proceeding.  A  statute  of  Michigan  provides  that,  in 
suits  commenced  by  attachment  in  favor  of  a  resident  against 
any  corporation  created  by  another  state,  if  a  copy  of  the  at- 
tachment with  an  inventory  of  the  property  attached  shall 
have  been  personally  served  on  any  officer,  member,  clerk  or 
agent  of  such  corporation  within  the  state  of  Michigan,  the 
same  proceedings  shall  be  had  thereupon  and  with  like  effect 
as  in  case  of  attachment  against  a  natural  person,  which  shall 
have  been  returned  served  in  like  manner  upon  the  defendant.* 
Commenting  upon  a  case  against  a  foreign  corporation  which 
had  been  proceeded  against  under  this  law,  the  supreme  court 
of  the  United  States  remarked  that  the  w^rit  seems  "  to  serve 
a  doable  purpose  —  as  a  command  to  the  oflBcer  to  attach  the 
property  of  the  corporation,  and  as  a  summons  to  the  latter 
to  appear  in  the  suit ; "  and  added :  "  Without  considering 
whether  authorizing  service  of  a  copy  of  the  Avrit  of  attach- 
ment as  a  summons  on  some  of  the  persons  named  in  the  stat- 

1  Great    "Western    Mining    Co.    v.    Tenn.  407.     See  Bannister  v.  Carroll, 
Woodnias,   12    Colo.   46.      Compare    43  Kan.  64. 

Smith  V.  Yargo,  28  111.  App.  594,  in  3  Summons    to  a    firm :     Gans  v. 

both  cases  land  attached.  Beasley  (N.  D.),  58  N.  W,  714. 

2  Drysdale  v.  Biloxi,  etc.,  67  Miss.  *  Howell's  Stat.,  §§  8138,  8143. 
534 ;  City  of  Nashville  v.  Wilson,  88 


152  PROCESS.  [§  202. 

Lite  —  a  member,  for  instance  ...  is  not  a  departure 
from  the  principle  of  natural  justice  mentioned  in  Lafayette 
Insurance  Co.  v.  French/  which  forbids  condemnation  with- 
out citation,  it  is  sufficient  to  observe  that  we  are  of  the  opin- 
ion that  when  service  is  made  within  the  state  upon  an  agent 
of  a  foreign  corporation,  it  is  essential,  in  order  to  support  the 
jurisdiction  of  the  court  to  render  a  personal  judgment,  that 
it  should  appear  somewhere  in  the  record  .  .  .  that  the 
corporation  was  engaged  in  business  in  the  state."  In  other 
words,  the  summons  was  held  not  good  upon  the  corporation 
because  not  served  upon  any  person  authorized  by  it  to  rep- 
resent it.^  Yet  previously  the  court  had  said  that  if  the  at- 
taching creditors  were  residents  of  Michigan,  "  the  jurisdiction 
of  the  court,  under  the  Avrit,  to  dispose  of  the  property  at- 
tached, cannot  be  doubted,  so  far  as  was  necessary  to  satisfy 
their  demand.  No  question  was  raised  as  to  the  validity  of 
the  judgment  to  that  extent.  The  objection  to  it  was  as  evi- 
dence that  the  amount  rendered  was  an  existing  obligation  or 
debt  against  the  company.  If  the  court  had  not  acquired 
jurisdiction  over  the  company,  the  judgment  established  noth- 
ing as  to  its  liability  beyond  the  amount  which  the  proceeds 
of  the  property  discharged."  ^  It  is  further  stated  that  the 
company  or  corporation  made  no  ajipearance.  There  was  no 
publication  notice.  The  quere  is,  How  could  the  writ  as  a 
summons  be  good  in  the  ancillary  action  yet  not  in  the  per- 
sonal or  principal  suit  i^  How  can  there  have  been  jurisdiction 
in  either?  Was  not  the  decree  against  the  property  attached 
"  a  departure  from  the  jprinciple  of  natural  justice  .  .  . 
which  forhids  condemnation  without  citationf  "  That  the  court 
is  not  to  be  understood  as  deciding  that  there  was  jurisdic- 
tion appears  from  the  fact  that  "  no  question  was  raised  as  to 
the  validity  of  the  judgment "  in  the  ancillary  suit,  without 
appearance,  without  valid  summons  and  without  pulplication. 
§  202.  Notice  of  time  to  (qypear. —  The  summons  should  in- 
form the  defendant  within  what  time  he  is  required  to  appear. 

1 18  How.  404.  a  mere  clerk.     Blanc  v.  Paymaster, 

2  In    California  the  cashier  of    a  etc.,  95  Cal.  524 ;  Cal.  Code  Civ.  Proc. 

bank,  to  be  susceptible  of  service  in  §  543, 

attachment  to  bind  the  corporation,  3  st.  Clair  v.  Cox,  106  U.  S.  350. 

must  be  an  executive  officer  and  not 


§  203.]  SUMMONS.  153 

If  it  erroneously  state  less  time  than  the  law  allows,  doubtless 
there  could  be  no  valid  default  entered  for  non-appearance 
within  the  stated  period,  and  the  defendant  might  lawfully 
plead  at  any  time  before  the  expiration  of  the  period  fixed  by 
law ;  but  it  has  been  held  that  such  default  would  not  be  ab- 
solutely void ;  that  a  summons  erroneous  by  reason  of  such 
limitation  is  amendable,  and  like  errors  curable.^  Where  six 
days  were  stated  when  ten  was  the  legal  period,  and  an  order 
of  publication  was  granted  because  the  return  showed  that  the 
defendant  was  not  found,  and  the  party  afterwards  personally 
appeared  and  sought  to  set  aside  the  proceeding  on  account  of 
the  illegality  of  the  summons,  the  court  allowed  it  to  be 
amended  nunc  pro  tunc?  It  was  certainly  the  right  of  the 
defendant  to  appear  within  ten  days  from  service,  had  he  been 
served ;  but  when  he  could  not  be  found  within  reasonable 
time,  and  the  officer  had  returned  that  after  diligent  search 
the  defendant  could  not  be  found,  it  is  difficult  to  see  how  the 
mistake  in  the  summons,  could  affect  the  default.  When  that 
mistake  had  been  corrected,  the  defendant  stood  as  though  it 
had  never  been  made.  He  could  yet  set  aside  the  default 
upon  other  grounds  and  file  his  answer. 

§  203.  If  the  officer  make  a  mistake  in  his  return  of  the 
summons ;  if,  for  instance,  he  should  report  that  he  has  left  the 
citation  at  the  residence  of  the  defendant  when  he  has  really 
left  it  at  another  house,  the  summons  would  be  worthless  if 
the  return  could  be  contradicted.  If  the  fact  of  the  mistake 
were  brought  to  the  knowledge  of  the  court  by  an  amended 
return,  no  disastrous  consequences  would  necessarily  result; 
but  if  the  officer  should  insist  upon  his  report  as  at  first  made, 
so  that  it  could  not  be  corrected  by  parol  evidence,  he  would 
be  liable  for  whatever  injury  he  might  cause,  and  the  return 
would  not  screen  the  attaching  creditor  when  sued  for  dam- 
ages.^ 

The  sheriff  may  show,  under  oath,  why  he  failed  to  serve 
summons,  and  give  as  reasons  facts  stated  to  him   without 

1  Watkins  v.  Stevens,  3  How.  Pr.  sell,  9   Dowl.  487 ;  Catliu  v.  Rickets, 

28;  Clapp  v.  Graves,  26  N.  Y.  418;  91  N.  Y.  668. 

McCoun  V.  New  York,  etc.  R.  R.  Co.,  2  Gribbon  v.  Freel,  93  N.  Y.  96. 

50  id.   176 ;    Bradbury  v.  Van   Nos-  3  Buckingham  v.  Osborne,   44   Ct. 

trand,  45  Barb.  194;  Holmes  v.  Rus-  133. 


154  PROCESS.  [§§  204,  205. 

oath.  Such  an  affidavit  may  be  sufficient  to  give  jurisdiction 
to  issue  an  attachment  against  the  defendant  as  one  who  has 
left  the  state.  "When  the  return  of  summons  has  been  filed 
but  has  not  been  signed  by  the  sheriff,  the  court  may  grant 
him  leave  to  sign  nunc  pro  tunc} 

II.  The  Weit. 

§  204.  Not  dependent  on  failure  to  find  defendant —  Under 
the  attachment  system  now  prevailing,  the  writ  commanding 
the  officer  to  seize  property  of  the  debtor  is  not  issued  in  de- 
fault of  ordinary  process;  that  is,  it  is  not  granted  because 
there  has  been  a  return  of  a  previously  issued  summons  show- 
ing that  the  defendant  has  not  been  found,  as  was  formerly 
the  case  when  the  object  of  attachment  was  to  compel  ap- 
pearance. I^ow  the  summons  and  the  writ  may  go  out  to- 
gether ;  for  the  present  purpose  is  not  only  to  cite  the  defend- 
ant, but  also  to  create  immediately  a  lien  upon  his  property 
to  conserve  it  for  eventual  execution.  The  affidavit  having 
afforded  ex  parte  evidence  that  ordinary  process  would  be  in- 
adequate and  that  the  conditions  exist  under  which  the  stat- 
ute allows  the  extraordinary ;  ^  and  the  bond  having  been 
given  to  protect  the  defendant  against  any  abuse  of  the  latter, 
the  next  step  is  the  issuance  of  the  order  for  taking  from  the 
defendant  any  property  of  his  not  exempt  from  execution,  and 
for  attaching  in  the  hands  of  others  what  may  be  due  him  by 
them,  or  held  for  him  by  them,  to  the  amount  of  the  debt 
and  probable  costs.  The  writ  may  be  granted  after  verdict 
in  the  personal  case.^ 

§  205.  Duality. —  There  is  now,  from  the  incipiency  of  the 
proceedings,  a  dual  action  ;*  a  movement  against  the  defendant 
to  obtain  a  personal  judgment  against  him,  and  a  movement 

iLuttrell  V.  Martin,  112  N.  C.  503;  affidavit  had  not  preceded  the  writ. 

Williams  v.  Weaver,  101  id.  1 ;  Wal-  Howell  v.  Muskegon  Ct.  Judge,  88 

ters  V.  Moore,  90  id.  41 ;  Henderson  Mich.  369. 

V.  Graham,  84  id.  496 ;  Clark  v.  Hel-  3  Davis    v.   Jenkins,   46    Kan.    19 ; 

len,  23  id.  421.  Speelman  v.    Chaffee,   5   Colo.   247 ; 

-  When  the  affidavit  and  writ  were  Bayley  v.  Ward,  37  Cal.  121 ;  Lynch 

presented  together  to  the  judge,  and  v.    Crary,   52   N.  Y.  181 ;    Scheib  v. 

the  order  issued   thereon,  the  pro-  Baldwin,  22  How.  Pr.  278. 

ceedings  were  held  void  because  the  *  §  9. 


§§  206,  207.]  WEiT.  155 

against  bis  property  when  attached,  to  obtain  a  judgment 
which  shall  be,  in  effect,  against  that:  susceptible  of  being 
executed  against  that  only  if  he  shall  not  be  summoned  and 
shall  not  appear  though  notified  by  publication ;  susceptible 
of  being  executed  against  that  or  any  other  property  if  he 
shall  have  been  summoned  or  shall  have  appeared  and  shall 
have  had  judgment  rendered  against  him  with  or  without 
privilege  upon  the  property  attached, 

§  206.  The  issue  of  a  summons  is  no  less  essential  now  than 
formerly.  The  difference  is  that  it  need  not  be  returned  void 
before  the  writ  of  attachment  can  be  issued.  Attachment  of 
the  body  of  the  debtor  for  debt  having  been  abolished,  it  can 
no  longer  be  said  that  the  attachment  of  his  property  is  a  sub- 
stitute for  that,  and  that  he  is  brought  into  court  by  his  prop- 
erty. Indeed,  the  custom  of  London  did  not  go  so  far  as  that, 
though  some  decisions,  rendered  even  since  the  abolishment 
of  personal  arrest  for  debt,  seem  to  have  been  written  under 
the  impression  that  such  was  the  case.  True,  the  purpose 
was  to  compel  appearance ;  but  there  was  no  procedure  on  the 
assumption  that  the  purpose  was  effected  by  the  seizure;  that 
is,  the  debtor  was  not  deemed  to  be  in  court  because  his  prop- 
erty was.  This  plainly  appears  from  the  circumstances  that 
four  proclamations,  at  different  times,  calling  upon  him  to  come 
into  court,  must  be  made  before  a  judgment  by  default  could 
be  rendered ;  that  the  plaintiff  was  required  to  give  pledges 
to  restore  in  case  the  defendant  should  appear  within  a  year 
and  a  day;  and  that  final  judgment  could  not  be  rendered  be- 
cause the  defendant  was  not  in  court.^ 

§  207.  The  proceedings  were  not  dual  under  the  custom ; 
they  were  personal  in  case  the  defendant  appeared  and  en- 
tered bail  as  in  any  ordinary  action ;  they  were  personal  if  he 
did  not  appear,  but  they  could  result  only  in  a  judgment  by 
default  for  non-appearance  to  be  perfected  only  by  the  legal 
prescription  of  a  year  and  a  day.  They  were,  in  this  respect, 
rather  a  procedure  by  legal  distraint  for  debt  than  a  suit  at 
law  in  the  proper  sense  of  the  term. 

J  Locke  on  For.   Att.  *3,  *3,  citing,  Case,  1  Wms.  Saunds.  67 ;   Banks  v. 

to  show  the  custom,  1  Eol.  Abr.,  Cus-  Self,  5  Taunt.  334 ;  Crosby  v.  Hether- 

toras  of  London,  K.  1,  3  and  4 ;  Hor-  ington,  4  M.  &  G.  938 ;  Magrath  v. 

ton  V.  Beckman,  6  T.  R  760 ;  Turbill's  Hardy,  5  Bing.  N.  C.  783. 


15G  PROCESS.  [§  208. 

Under  the  system  now  generally  prevailing  in  this  country 
the  attachment  writ  should  be  so  issued  and  so  executed  as  to 
prove  effective  in  case  the  suit  should  prove  to  be  in  rem  only, 
so  far  as  concerns  its  effect.  The  creditor  should  be  as  cautious 
as  though  he  knew  that  the  debtor  would  be  notified  only  by 
publication.  He  should  not  depend  upon  the  curing  of  defects 
by  the  appearance  and  pleading  of  the  debtor.  He  should 
bring  himself  fully  within  the  statutory  requirements  as  to  the 
affidavit  and  the  bond.  He  should  bear  in  mind  that  the  ob- 
ject of  the  suit  is  to  obtain  2k  final  judgment  under  which  the 
attached  property  may  be  unqualifiedly  sold,  and  to  which 
the  purchaser  may  obtain  a  defensible  title. 

III.  Issuance  of  the  Writ. 

§208.  Issued  hy  derlz. —  The  writ,  though  not  unusually 
issued  by  the  clerk,  is  an  emanation  from  the  court.'  The 
attachment  being  issued  as  a  matter  of  course  upon  the  com- 
pliance by  the  applicant  with  all  legal  requirements  may  as 
well  be  granted  by  the  court  through  the  clerk  as  to  be  done 
through  the  agency  of  the  judge's  own  right  hand.  JSTo  judi- 
cial deliberation  is  called  into  operation,  and  the  act  is  done 
by  the  clerk  for  the  judge  under  the  general  provision  found 
in  the  statute,  and  a  presumed  general  order,  as  though  under 
a  special  order  from  the  court  in  the  particular  case. 

Is  the  issuance  of  the  writ,  then,  a  judicial  act  when  done 
by  the  clerk?  It  is  said  to  be  a  ministerial  act,  bub  it  is  not 
therefore  an}^  the  less  judicial.  The  judge  acts  through  the 
minister ;  the  latter  is  his  right  hand.  Wide  is  the  difference 
between  such  a  minister  and  an  executive  officer  of  the  court. 
The  former  is  the  servant  of  the  court:  the  latter  is  the 
servant  of  the  county  or  district  of  which  he  is  an  officer.  A 
judge  may  make  a  clerk  amend  his  minutes  or  any  form  of 

1  In  New  York  the  warrant  of  at-  Reed    v.    Bagley.    24    Neb.   333.     In 

tachment  must  be  subscribed  by  tlie  Georgia  the  writ  may  be  issued  by  a 

judge  and  the  attorney  of  the  plaint-  notary.     Georgia  Ice  Co.  v.  Porter, 

iff.     This  is  held    mandatory ;    and  70  Ga.  637.    The  issuance  of  the  writ 

omission  is  incurable  by  amendment,  to  the  sheriff  has  no  effect  if  not  fol- 

lu  Nebraska  the  district  judge  grants  lowed  by  service  and  seizure.     May 

attachments,  but  in   his   absence    a  ?;.  Buckhannon.  etc.,  70  Md.  448;  Mc- 

probate   judge   may   represent  him.  Intosh  v.  Smiley,  32  Mo.  App.  125. 


§§  20y,  210.]  ISSUANCE  OF  wpaT.  157 

judgment  drawn  by  the  latter,  but  be  cannot  make  a  marshal, 
sheriff  or  constable  amend  his  return.  The  marshal  is  an  offi- 
cer of  the  United  States,  in  his  district;  the  sheriff  is  an  officer 
of  the  state  and  county ;  the  constable  is  an  officer  within  his 
geographical  limits,  but  the  clerk  is  an  officer  of  the  court, 
minister  of  the  court,  a  doer  of  ministerial  acts  for  the  court, 
a  performer  of  certain  judicial  functions  under  the  actual  or 
presumed  direction  of  the  judge  so  as  to  make  his  ministerial 
act  the  judge's  act. 

§  209.  The  clerk  could  not  legally  make  and  deliver  a  writ 
of  attachment,  though  the  statute  may  contemplate  the  mak- 
ing and  delivering  by  him  in  his  ministerial  capacity,  were 
the  bench  without  a  judge.  During  the  time  of  the  vacancj'' 
of  the  judgeship  no  attachment  could  be  legally  issued.  The 
awarding  of  process  is  presumably  done  always  by  the  judge. 
It  is  as  much  a  judicial  function  as  the  rendering  of  a  decis- 
ion. A  judge  may  decide  a  cause  and  then  have  his  minister 
write  out  the  judgment.  He  may  make  a  general  order  that 
when  an  affidavit  and  bond  are  presented  to  the  clerk  the 
latter  shall  issue  process  thereon ;  or  the  statute  (as  is  usual) 
may  supply  the  place  of  such  standing  order. 

§  210.  Issuance  a  judicial  act.  —  Where  there  is  statutory 
authorization  for  the  clerk  to  issue  the  process,  as  is  generally 
the  case,  he  still  is  presumed  to  act  under  the  authority  of 
the  court ;  and  it  would  seem  that  a  different  construction 
would  be  equivalent  to  holding  that  judicial  powers  may  be 
directly  conferred  upon  the  clerk.  In  all  cases  in  which  the 
clerk  validly  issues  process  he  ought  to  be  considered  as  act- 
ing for  the  judge,  as  his  minister;^  but  the  doctrine  that  the 
issues  of  attachments  by  clerks  are  judicial  acts  is  not  always 
recognized  by  the  courts. 

Whether  manipulated  by  the  clerk  or  the  judge  in  its  issu- 
ance, the  writ  is  a  judicial  emanation.  It  is  a  step  by  the 
court  in  the  exercise  of  jurisdiction.  It  is  an  exercise  of  juris- 
diction by  the  court  whether  issued  directly  by  the  judge,  or 
by  his  ministerial  officer  under  his  presumed  direction  when 
he  may  be  utterly  ignorant  of  the  application  of  the  plaintiff 
for  the  attachment. 

1  Van  Vechten  v.  Paddock,  12  Johns.  178.  See  Baker  v.  Ayers  (Ark.),  25 
S.  W.  834. 


158  PKOCESS.  [§§  211,  212. 

§  211.  When  the  clerk  is  unauthorized  by  law  thus  to  rep- 
resent the  judge,  the  latter  can' give  him  no  general  authority 
to  issue  attachments;  and  the  issiiiance  of  the  writ  by  the 
former  under  sucli  circumstances  would  not  be  an  exercise  of 
jurisdiction.^  The  usual  statute  provision  for  issue  by  the 
clerk  renders  it  unnecessary  for  the  judge  to  direct  him  in 
each  particular  case.  "When  an  order  of  court  is  required 
to  authorize  the  clerk  to  issue  the  writ,  attachment  is  void  if 
the  writ  is  issued  by  him  without  sucli  order.^ 

Sometimes  the  affidavit  is  made  in  one  county  and  the  writ 
is  issued  in  another;^  and  if  the  bond  may  be  executed  out  of 
the  jurisdiction,  still  the  clerk  cannot  respond  to  the  applica- 
tion for  the  writ  unless  the  statute  of  the  state,  with  reference 
to  both  the  affidavit  and  the  bond,  has  been  obeyed,  whatever 
its  requirement. 

TV.  Requisites  or  the  Weit. 

§  212.  Form  and  matter. —  The  form  and  requisites  of  the 
writ  vary  under  the  different  state  systems,  but  it  should 
always  show  the  title  of  the  cause,  the  parties  to  the  suit,  the 
court  whence  it  emanates,  the  amount  of  the  demand,  the 
officer  intrusted  with  its  execution,  the  time  within  which  it 
must  be  returned,  and  whatever  else  its  statute-authorization 
may  require.  The  parties  to  the  suit,  named  in  the  writ, 
should  be  the  same  as  those  stated  in  the  affidavit.^  The  writ 
must  correspond  with  the  affidavit  as  to  tlie  amount  claimed.^ 
But  it  need  not  be  issued  for  every  part  of  the  claim.^  Its 
validity  is  tested  by  the  facts  stated  in  the  affidavit.  They 
may  be  true  or  not,  but  they  must  be  stated  substantially  as 

1  Greenvault  v.  F.  &  M.  Bank,  2  acts  as  clerk,  Rawles  v.  People,  2 
Doug-.  (Mich.)  498 ;  Morrison  v.  Love-     Colo.  App.  501. 

joy,  6  Minn.  183 ;  Guerin  v.  Hunt,  8  3  Wright  v.  Smith,  6C  Ala.  545. 

id.  477 :  Lewis  v.  Dubose,  29  Ala.  219 ;  *  Bennett  v.  Zabriski,  2  N.  M.  7.  See 

Goldsmith  v.  Stetson,  39  id.  183.  p.  176  of  same  volume, 

2  Philpott  V.  Newman,  11  Neb.  299 :  5  Cohen  v.  Smith,  38  111.  App.  844 ; 
Held  that  in  a  suit  against  a  non-  Munzenheimer  v.  Manhattan,  etc.,  79 
resident  for  a  debt  not  due,  an  attach-  Tex.  318.  See  Steamship  Clarion  v. 
ment  issued  by  the  clerk,  without  an  Moi"au,  18  111.  500. 

order   of  court,   is    void.      Under  a        ^  Gross  v.  Goldsmith,  4  Mackey  (D. 
statute  requiring  the  judge  to  direct    C),  126. 
the  clerk,  he  need  not  do  so  when  he 


§  213.]  REQUISITES    OF    WKIT.  159 

the  statute  requires  to  give  jurisdiction  and  justify  the  issue 
of  the  writ.^  The  general  facts  of  the  declaration  need  not 
be  inserted."  The  debt  may  be  stated  as  less  than  the  dec- 
laration states  it,  without  fatality.^  If  the  affidavit  states 
that  the  debt  is  to  become  due,  the  incongruous  recital  in 
the  writ  that  it  is  due  has  been  held  not  fatal.*  If  the 
writ  is  upon  two  causes  of  action  stated  in  the  affidavit,  and 
one  of  them  is  untenable,  it  is  bad.^  It  should  show  prima 
facie  the  authority  of  the  officer  to  execute  it;  and  therefore 
it  is  essential  that  it  bear  evidence  of  its  coming  from  the 
court  to  the  executive  officer,  but  it  need  not  be  under  seal 
when  ordered  by  the  clerk.^  No  one  is  bound  to  recognize  a 
sheriff  or  a  marshal  or  anv  other  functionary's  right  to  lew" 
an  attachment  merelj^  because  of  his  official  character,  though 
that  creates  a  presumption  of  authority ; "  but  all  must  respect 
it  when  the  special  authorization  is  exhibited.  The  officer 
need  not  carry  his  authority  about  with  him  when  he  levies,^ 
but  must  be  authorized  by  the  writ  before  he  can  attach 
legally.^  A  stranger  cannot  be  thus  authorized  by  the  writ ; 
that  is,  the  clerk  cannot  appoint  a  special  sheriff  and  give  him 
authority  to  attach.^"  An  attachment  by  such  a  person  on 
such  a  warrant  could  be  set  aside,  on  motion,  by  any  one  in- 
terested though  not  an  original  party  to  the  suit."  The  offi- 
cer himself  would  be  unprotected  should  the  writ  be  without 
the  authority  of  a  court  having  jurisdiction  to  issue  it.  If  it 
is  void,  he  could  make  a  levy  thereunder  only  at  his  peril.^' 

§  213.  Direct  seizure  and  return. —  When  not  only  the 
amount  but  the  nature  of  the  claim,  and  even  specifications, 
must  appear  in  the  writ  or  by  an  appendage  thereto,  the  omis- 
sion of  such  matter  would  be  fatal.^^    The  date  of  the  return 

1  Dwyer  v.  Testard,  65  Tex.  432.  8  Barney  v.  Rockwell,  60  Vt.  444. 

2  Binney  v.  Globe  Bank,  150  Mass.  9  Carroll  County  Bank  v.  Goodall, 
574.  41  N.  H.  81 ;  Weingardt  v.  Billings, 

3  Evans  v.  Lawson,  64  Tex.  199 ;  La-  51  N.  J.  L.  354. 

throp  V.  Snyder,  16  Wis.  293.  lo  Dolan  v.  Topping,  51  Kan.  321. 

^  Spitz  V.  Mohr,  86  Wis.  387 ;  Wis.  n  Id. ;  Long  v.  Murphy,  27  Kan.  375 ; 

Rev.  Stat,  §  2731.  Grocery  Co.  v.  Records,  40  id.  119. 

5  Mayer  v.  Zingre,  18  Neb.  458.  "2  ijg  232-236. 

6  Seeligson  v.  Rigmaiden,  37  La.  i^  Hanson  v.  Dow,  51  Me.  165,  and 
Ann.  722.  cases  cited  therein. 

7  Miller  v.  Fay.  40  Wis.  633 ;  Wales 
V.  Clark,  43  Ct.  183. 


IGO  PROCESS.  [§§  214-2 IG. 

is  important  since  it  shows  the  limit  of  the  officer's  autliority 
with  respect  to  time;  and  within  that  limit  he  may  make  a 
return  showing  a  levy  on  any  legal  clay. 

The  writ  directs  the  preliminary  seizure  of  property  of  the 
defendant  in  quantity  enough  to  satisfy  the  plaintiff's  de- 
mand. The  particular  property  to  be  seized  is  usually  pointed 
out  by  the  plaintiff  to  the  sheriff  in  written  instructions. 

§  214.  The  writ  is  to  be  returned,  in  accordance  with  its 
provisions,  to  the  court  whence  it  was  issued.  This  would  be 
implied  if  not  expressed  in  the  instrument  itself.  If  there  is 
not  only  time  but  place  of  return  prescribed  in  the  mandate; 
and  if,  in  expressing  the  latter,  there  should  be  a  mistake  as 
to  the  court,  the  error  would  not  be  fatal  if  the  circumstances 
precluded  any  misunderstanding  as  to  what  court  the  writ  is 
returnable.^  The  writ  keeps  alive  till  the  expiration  of  the 
return  day.^ 

§  215.  If  the  grounds  of  the  attachment  have  to  be  inserted 
(which  is  required  in  some  states),  they  should  correspond 
with  those  in  the  affidavit;^  and  when  the  writ  is  without  the 
required  specifications  it  is  void.^  If  the  suit  is  by  a  firm, 
the  names  of  the  members  should  be  stated.^  When  the 
debtor's  Christian  name  appeared  on  the  face  of  the  attach- 
ment as  fictitious,  all  proceedings  thereunder  were  held  void 
and  the  officer  and  creditor  declared  liable  for  attaching, 
though  the  person  designated  by  the  fictitious  name  was  the 
owner  of  the  property  seized.^ 

§  216.  Delivery  to  officer. —  The  clerk  should  deliver  the  writ 
to  the  officer  who  is  to  execute  it,  immediately  upon  its  being 
completed.  He  may  so  deliver  it  through  the  agency  of  the 
plaintiff,  who,  should  he  neglect  to  give  it  to  the  ofilcer,  would 

1  Blossom  V.  Estes,  84  N.  Y.  614 ;  ^  In  Maine  the  amount  and  charac- 
Gere  v.  Gundlach,  57  Barb.  13;  ter  of  the  claim  not  being  specifically 
Simpson  v.  Burch,  4  Hun,  315.  set  forth   in   the  writ  when  it  was 

2  Talbot  V.  Pierce,  14  B.  Mon.  195.  based  on  a  money  count,  the  omis- 
See  Holzman  v.  Martinez,  2  N.  M.  sion  was  held  fatal.  Saco  v.  Hopkin- 
271.                                     ■  ton,  29  Me.  268 ;  Osgood  v.  Holyoke, 

3  Misrecital  held  fatal  in  Alabama  48  id.  410 ;  Neally  v.  Judkins,  id. 
(Woodley  v.  Shirley,  Minor,  14);  but  566;  Hanson  v.  Dow,  51  id.  165. 

not  in  Mississippi.     Lovelady  v.  Har-        &  Hirsh  u  Thurber,  54  Md.  210. 
kins,  14  Miss.  412 ;  Clanton  v.  Laird,        ^  Patrick  v.  Sohnger,  9  Daly  (N.  Y.), 
12  id.  568.  149. 


§§  217,  218,]  REQUISITES    OF    WEIT.  161 

be  the  only  person  injured  and  would  have  himself  alone  to 
blame.  The  clerk  is  therefore  safe  in  handing  the  writ  to  the 
attachment  plaintiff.  He  usually  does  so;  and  this  is  con- 
venient to  the  latter  (rather  his  attorne}^),  who  usually  has 
instructions  to  give  as  to  the  property  to  be  seized,  its  where- 
abouts, etc.,  just  as  when  directing  an  execution. 

Immediate  delivery  on  the  part  of  the  clerk  becomes  very 
important  when  there  are  rival  creditors  running  a  race  for 
preference,  and  where  the  law  treats  such  writs  by  the  rule 
first  coine,  first  served} 

§  217.  Dies  non. —  There  is  an  exception  in  case  of  the  de- 
livery of  such  a  writ  to  the  executive  officer  on  a  dies  non  — 
such  delivery  gaining  no  advantage  by  thus  anticipating  the 
next  judicial  day.^  Attachments,  like  other  civil  writs,  can- 
not be  issued  from  the  court  to  the  officer  on  Sunday,  unless 
there  is  statutory  authority  therefor;  because  such  act  would 
be  contrary  to  the  common  law;''  and  if  there  is  statutory 
authority  under  prescribed  circumstances,  the  plaintiff  must 
show  those  circumstances  to  exist  by  affidavit.^  If  the  grant- 
ing and  issuing  of  civil  process  is  a  judicial  act  though  done 
through  a  ministerial  officer,  it  clearly  comes  under  the  com- 
mon-law inhibition  with  respect  to  the  sabbath.  Dies  Domin- 
icus  non  est  juridicus.  Criminal  process  is  exceptional,  by 
statute,  in  England  with  regard  to  specified  crimes;  and  more 
generally  so  in  the  United  States:  warrants  for  offenders  being 
issuable  on  Sundays, 

§  218.  If  the  issue  of  an  attachment  by  the  clerk  is  a  minis- 
terial act  in  such  sense  that  it  is  not  judicial,  it  does  not  come 
under  the  common-law  inhibition.^     It  is  not  safe  for  a  practi- 

1  It  has  been  held  that  as  an  officer  has  been  made  on  Sunday  upon  the 
ought  to  serve  in  the  order  of  his  re-    first  order, 

ception  of  several  processes,  the  court  3  3  b].  Com.  277 ;  Swann  v.  Broome, 

will    rank   the   liens  in   that  order  3  Burr.  1595. 

though  served  differently.     State  v.  *  Updyke  v.  Wheeler,  37  Mo.  App. 

Hamilton,  38  Mo.  App.  287.  SeeTenn.  680. 

R.  S.  447.  5  Johnson  v.  Day,  17  Pick.  106,  109, 

2  Whitney  v,  Butterfield,  13  Cal.  where  it  is  said  ;  "Another  objection 
335  ;  Blair  v.  Shew.  24  Kan.  280.  In  is  that  the  writ  of  attachment  ,  .  . 
the  latter  case  held  that  an  alias  was  void,  the  same  having  been  made 
order  made  on  Monday  will  not  au-  and  delivered  to  the  officer  on  Sun- 
thorize  an  attachment  if  a  void  levy  day.     By  the  common  law,  all  judi- 

11 


162 


PROCESS. 


[§  218. 


tioner  to  rely  upon  the  judicial  character  of  the  act  in  the  pres- 
ent state  of  opinion  upon  this  subject.  Distinction  has  been 
drawn  between  orders  of  attachment,  some  being  held  judicial 
and  some  ministerial;  and,  though  such  distinction  seems  un- 
warrantable, it  has  to  be  respected  where  the  courts  recognize 
it.  Under  statutory  regulations,  the  granting  of  the  order,  as 
well  as  the  execution  of  it,  on  Sunday  or  anv  dies  non,  is  ffen- 
erally  illegal,  and  may  be  made  the  ground  for  dissolving  the 
attachment.^  But  the  issuance  of  the  writ  on  legal  holidays 
for  debt  due  has  frequently  been  justified  as  a  ministerial  act.^ 
The  writ  is  frequently  issued  during  the  court  vacation ;  * 
by  the  judge  in  chambers  during  session  or  vacation ;  by  the 
clerk  on  money  demands  clearly  ascertained;^  in  many  states 
by  him  on  any  demand  upon  which  attachments  are  issuable. 
He  must  sign  the  writ  issued  by  him  under  pain  of  nullity.^ 


cial  acts  done  on  Sunday  are  held 
void,  .  .  .  but  all  ministerial  acts 
were  valid  before  St.  29  Car.  2,  c,  7, 
so  that  an  arrest  on  civil  jjrocess  on 
Sunday  was  legal.  Mackalley's  Case, 
9  Coke,  65.  If  then  the  case  were  to 
be  determined  by  the  principles  of 
the  common  law,  the  question  would 
be,  whether  the  filling  up  of  a  blank 
writ  and  delivering  it  to  an  officer 
would  be  a  judicial  or  a  ministerial 
act"  This  is  an  unfair  putting  of 
the  question;  it  should  be  whether 
the  ordering  of  the  attachment  is  a 
judicial  or  a  ministerial  act.  The 
illustration  from  9  Coke  is  not  in 
point,  for  arrest  on  civil  process  is  an 
executive  act. 

1  Merchants'  N.  Bank  v.  Jaflfray 
(Neb.),  54  N.  W.  258;  Morris  v.  Shew, 
29  Kan.  661.  Held  in  Blair  v.  Shaw, 
24  id.  280,  that  a  levy  is  void  if  made 
on  Sunday,  and  voidable  if  made  on 
an  alias  order  on  Monday.  Held  in 
Johnson  v.  Day,  17  Pick.  106,  and  in 
Tracy  v.  Jenks,  15  id.  465,  467,  tliat 
the  writ  may  be  issued  on  Sunday 
after  sunset;  but  in  Fifield  v.  Woos- 
ter,  21  Vt.  215,  held  that  the  writ 
could  not    be    issued  on   Saturday 


evening  after  sunset  —  each  decision 
following  its  governing  statute.  In 
Alabama  the  writ  is  held  to  be  ir- 
regularly issued  if  done  on  Sunday. 
Matthews  v.  Ausley,  31  Ala.  20.  In 
general  see  Butler  v.  Kelsey,  15 
Johns.  177;  Delamater  v.  Miller,  1 
Cow,  75;  Geer  v.  Putnam,  10  Mass.- 
312 ;  Story  v.  Elliot,  8  Cow.  27 ;  Mor- 
gan V.  Richards,  1  Browne  (Pa.),  171 ; 
Butler  V.  Kelsey,  15  Johns.  177; 
Hoghtaling  v.  Osborn,  15  id.  119; 
Field  V.  Park,  20  id.  140;  Fox  v. 
Abel,  2  Ct.  541 ;  Pierce  v.  Atwood,  13 
Mass.  324,  347;  Cotton  v.  Huey,  4 
Ala.  56. 

■■^Whipple  V.  Hill,  36  Neb.  720; 
Glenn  v.  Eddy,  51  N.  J.  L.  255;  Kin- 
ney v.  Emery,  37  N.  J.  Eq.  339 ;  Whit- 
ney V.  Blackburn,  17  Oreg.  564 ;  Had- 
ley  V.  Mussel  man,  104  Ind.  459 ;  Smith 
V.  Ihling,  47  Mich.  614 ;  Weil  v.  Geier, 
61  Wis.  414;  Worthington,  In  re,  7 
Biss.  455. 

3  Byers  v.  Brannon  (Tex.),  19  S.  W. 
1091. 

4  Atkinson  v.  James,  96  Ala.  214. 

5  Smith  V.  Hackley,  44  Mo.  App. 
614. 


§§  219-221.]  AMENDMENT.  163 

§219.  Order  of  (Mivcry. —  A  writ  oi  fieri  facias  or  any 
execution  writ  is  entitled  to  no  favor  over  an  attachment  writ, 
and  the  clerk  should  first  deliver  the  one  which  is  first  in  the 
order  of  time.^  But  this  rule  as  to  the  order  of  delivery- 
should  not  prevent  the  clerk  from  giving  a  prepared  writ  to  a 
second  applicant  for  attachment  when  the  first  is  not  present 
to  receive  his.^  AVhether  the  practice  is,  in  any  state,  for  the 
clerk  to  deliver  writs  to  plaintifi's  to  be  by  them  given  to  the 
officer  with  such  instructions  as  they  choose  to  impart,  or  for 
him  to  deliver  them  directly  to  the  executive  officer,  the  rule 
is  the  same  as  to  the  order  in  which  they  should  be  delivered. 
Any  partiality  by  the  clerk  resulting  in  an  undue  advantage 
to  one  creditor  over  another  would  render  him  personally 
liable  to  the  injured  party. 

Y.  Amendment. 

§  220.  The  writ  must  go  into  the  officer's  hands  in  a  perfect 
state,  since  it  is  his  warrant  for  the  exercise  of  the  sovereign 
act  of  taking  a  man's  property  away  from  him  at  the  law's 
behest.  If  not  perfect,  it  cannot  be  amended  in  any  essential 
feature  after  property  has  been  attached  pursuant  thereto.  If 
the  attachment  is  void  for  want  of  authority,  no  emendation 
of  the  warrant  can  cure  what  has  been  unlawfully  done.  It 
is  of  the  highest  importance  therefore,  not  only  to  tlie  plaint- 
iff's interest  but  to  the  officers  protection,  that  the  writ  be 
right  before  it  is  acted  upon.  Though  it  be  right,  if  the  serv- 
ice is  illegal,  no  lien  is  created.' 

There  can  be  no  reason  why  it  may  not  have  defects  repaired 
before  the  levy.  Nobody  is  in  court  but  the  plaintiff;  nobody 
can  oppose  the  plaintiff's  application  to  have  the  writ  changed 
in  form  and  substance  so  as  to  accord  with  the  affidavit  and 
petition,  and  no  judge  should  refuse  to  correct  his  own  act  in 
issuing  a  defective  mandate. 

§  221.  After  the  levy  the  summoned  defendant  has  an  in- 
terest to  oppose  the  bettering  of  a  bad  writ;  the  court  must 

1  Bradley's  Appeal,  89  Pa.  St.  514.    was  modified  owing  to  some  agree- 
Au  attachment  writ  was  put  into  the    ment  with  the  trustees,  etc. 
sheriff's  hands  at  2  o'clock,  10  min-        2  Lick  v.  Madden,  3G  Cal.  208.     See 
utes;  a  j^.  /a.  at  3  o'clock ;  the  first    Florsheim,   etc.    Co.   v.   Commission 
was  preferred,   but  the  preference    Co.  (Ark.),  27  S.  W.  79. 

3  Fairbanks  v.  Bennett,  52  Mich.  61. 


164  PKOCEss.  [§  222. 

let  him  be  heard  contradictorily,  if  the  plaintiff  should  pray 
for  amendment;  the  court  itself  is  incompetent  to  make  the 
bad  writ  good,  if  it  has  failed  to  acquire  jurisdiction  by  reason 
of  non-conformity  to  law  thus  far,  in  any  respect. 

Even  an  amendment  of  the  writ,  made  after  the  levy  with 
the  assent  of  the  defendant,  will  not  retroactively  make  the 
writ  good  in  relation  to  other  writs  of  attachment,  all  against 
the  same  property.^ 

§  222.  After  service,  a  writ  cannot  be  altered  to  insert  a  di- 
rection for  the  summoning  of  a  trustee.-  The  same  is  true 
with  regard  to  the  summoning  of  a  garnishee.  The  reason  is 
that  if  a  writ  could  be  so  altered  after  service,  the  defendant 
would  have  no  official  notification  of  the  fact.  He  could  only 
have  it  by  the  service  of  a  second  writ  after  the  summoning 
of  the  trustee  or  garnishee,  and  that  would  not  be  an  amend- 
ment of  the  first. 

A  writ  which  recited  the  wrong  court  as  the  place  of  the 
filing  of  the  petition  and  where  the  writ  should  be  returned 
was  held  amendable  under  a  statute  which  authorized  the 
emendation  of  any  proceeding  in  attachment.*  The  amend- 
ment of  attachment  writs  is  liberally  allowed  in  Alabama, 
even  as  to  substance,  and  though  the  defect  has  been  met  by 
a  plea  in  abatement.* 

When  a  writ  is  amendable  between  the  levy  and  the  judg- 
ment, its  amendment  cannot  have  such  retroactive  effect  as  to 
make  the  attachment  lien  outrank  a  mortgage  given  by  the 
defendant  before  the  amendment,^  unless  the  modification  is 
of  a  slight  character  and  not  such  as  is  necessary  to  give  valid- 
ity to  the  levy.  If  the  defect  of  the  writ  is  that  of  using  a 
wrong  name,  directing  the  attachment  of  one  man's  property 
when  that  of  another  should  be  seized,  the  proper  course  is  to 
withdraw  the  writ  and  issue  a  new  one.  If  amendment  is 
allowed,  a  new  levy  vrould  be  necessary,  even  if  the  property 
has  already  been  seized  as  that  of  the  wrong  person.® 

iDanielson  v.   Andrews,    1    Pick.  *  Herring  v.   Kell}%   96  Ala.   559; 

156 ;  Putnam  v.  Hall,  3  id.  445.     See  Ala.  Code,  §  2998 ;  Peebles  v.  Weir, 

Atkins  V.  Womeldorf,  53  Iowa,  150.  60  Ala.  413. 

^  Brown  v.  Neale,  80  Allen,  74.  ^  Drew  v.  xilfred  Bank,  55  Me.  450. 

3  Rock  Island  Plow  Co.  v.  Breese,  ^Gile  v.  Devens,  11  Cush.  591 
83  Iowa,  553 ;  Iowa  Code,  §  3021. 


§§  223-225.]  AMENDMENT.  165 

§  223.  Misnomer. —  Whether  a  misnomer  may  be  corrected 
or  not,  after  the  service  of  the  summons  and  the  execution  of 
the  writ,  depends  greatly  upon  the  question  whether  the  cor- 
rection would  impair  the  rights  of  the  defendant,  or  co- 
attachers,  or  any  third  persons.  The  error  is  not  amendable 
if  it  cannot  be  corrected  without  injuring  some  party.^  A 
misnomer  may  be  disregarded  when  the  sense  is  apparent.' 
Shght  clerical  errors,  such  as  the  omission  of  a  letter  in  a 
name  or  the  insertion  of  one,  or  even  a  wrong  date  of  return, 
where  no  one  can  fail  to  apprehend  the  meaning,  may  be  made 
after  the  levy.* 

§  224.  Seal. —  If  a  writ,  issued  out  of  the  proper  court  after 
jurisdiction  acquired,  should  bear  a  wrong  seal  —  if,  for  in- 
stance, it  should  bear  the  seal  of  the  district  instead  of  the 
circuit  court  when  issued  by  the  latter, —  it  maybe  amended.* 
Such  an  error  ought  to  be  amendable  anywhere,  because  there 
can  be  no  doubt  as  to  what  court  issued  the  writ,  and  there- 
fore none  that  its  seal  ought  to  have  been  impressed  upon  the 
mandate;  and  it  injures  no  one  to  have  such  an  error  of 
inadvertence  corrected  when  discovered.'^ 

§  225.  Wrong  address. — If  a  writ  is  wrongly  directed,  the 
address  may  be  summarily  righted  by  the  clerk;  though, 
should  it  not  be  righted,  yet  if  the  sheriff  knows  that  the 

1  Button  V.  Simmons,  65  Me.  583;  berg,  8  Abb.  Pr.  (N.  S.)  287;  Jackson 
Flood  V.  Randall,  72  id.  439.  v.  Brown,  4  Cow.  550 ;  People  v.  Steu- 

2  Loveladj-  v.  Harkius,  14  Miss.  412.  ben,  5  Wend.  103 ;  People  v.  Dunning, 

3  Hall  V.  Brown,  82  Tex.  469 ;  Diet-  1  id.  16 ;  Dominick  v.  Backer,  3  Barb, 
trich  V.  Wolflfsohn,  136  Mass.  335;  17;  Sabin  v.  Austin,  19  Wis.  421; 
Wentworth  v.  Sawyer,  76  Me.  434 ;  Corwith  v.  Bank,  18  id.  560 ;  Strong 
Wight  V.  Hale,  2  Cush.  486;  Well-  v.  Catlins,  3  Pin.  (Wis.)  121;  Dwight 
over  V.  Soule,  30  Mich.  481.  But  a  v.  Merritt,  4  Fed.  615 ;  Paper  Co.  v. 
radical  change  of  name  is  fatal.  Paper  Co.,  19  id.  252.  Compare 
Kennedy  v.  Merriam.  70  111.  228;  Bailey  v.  Smith,  12  Me.  196;  Overton 
Moore  v.  Graham,  58  Mich.  25.  v.  Cheek,  22  How.  46.     An  unsealed 

*  Murdough  v.  McPherrin,  49  Iowa,  writ  is  held  void  at  common  law. 

479 ;  Wolf  V.  Cook,  40  Fed.  432.  Wolf  v.  Cook,  supra;  Insurance  Co. 

5  Arnold  v.  Nye,  23  Mich.  286,  293 ;  v.  Hallock,  6  Wall.  556.     See  Hunter 

Tiltou  V.  Cofield,  93  U.  S.  167;  Cart-  v.  Turnpike  Co.,  56  Ind.  213.    Judge 

Wright  V.  Chabert,  3  Tex.  261 ;  Peas-  Lumpkin,  of  Georgia,  has  ridiculed 

lee    V.    Haberstro,    15    Blatch.   472 ;  the  importance  attached  to  the  seal, 

Clark  V.  Hellen,  1  Ired.  421 :  Purcell  in  the  case  of  Lowe  v.  Morris,  13  Ga. 

V.  McFarland,  1  id.  34;  Seawelt  v.  150,   and    many  of    the    profession 

Bank,  3  Dev.  279;  Talcott  v.  Rosen-  doubtless  will  agree  with  him. 


1G6  PKOCESS.  [§§  226,  227» 

order  is  meant  for  him,  and  goes  on  to  make  the  levy,  his 
action  will  not  be  void.^  Trouble  and  contention  might  ensue 
should  he  have  in  hand  a  junior  writ  of  attachment  against 
the  property  of  the  same  defendant,  properly  directed ;  but 
even  in  such  case  he  ought  to  call  the  clerk's  attention  to  the 
error  and  have  it  corrected,  if  he  is  cognizant  of  it,  or  go  on 
and  make  the  levy,  knowing  that  the  court's  order  must  be 
obeyed  though  the  evidence  of  it  be  defective.  Where  there 
is  no  rival  writ,  there  w^ould  be  only  the  debtor  to  complain 
of  the  emendation,  and  certainly  his  complaint,  under  the  cir- 
cumstances, would  be  of  no  avail.^  The  writ  should  not  be 
directed  to  any  officer  who  is  interested  in  the  case.^ 

§  22G.  When  necessary  and  authorized,  an  alias  writ  may  be 
issued;  but  the  defendant  cannot  confer  authority  for  its  issue 
by  his  consent,  or  render  an  alias  good  by  his  waiver  of  objec- 
tion on  the  ground  of  want  of  statutory  authorization.*  The 
issue  of  a  second  writ  is  not  necessarily  an  abandonment  of 
the  first.^  Service  under  an  amended  writ,  which  was  not 
sufficient  originallj'",  under-ranks  a  prior  service  under  a  later 
writ  which  needed  no  amendment.^  If  the  plaintiff  has  sued 
out  two  writs,  he  is  held  protected  from  the  consequences  of 
the  insufficiency  of  the  first  by  the  second  if  it  is  rights 

YI.  The  Writ  as  to  Peopeety. 

§  227.  Defendants  j^roi)erty. —  It  is  a  peculiarity  of  this 
writ  for  the  seizure  of  property  that,  Avhile  it  has  reference 
only  to  the  defendant's  property,  it  is  not  directed  against 
any  specified  thing,  though  there  are  exceptional  cases.  In 
this  respect  it  is    unlike   an   admiralty  warrant,  which  is  a 

1  Warren  v.  PurtelJ,  63  Ga.  428.  3  McLeod  v.  Harper,  43  Miss.  42  \ 

2  In  Iowa  the  writ  may  be  amended  Boykin  v.  Edwards,  21  Ala.  261; 
after  the  levy.  Atkins  v.  Womel-  Lyman  v.  BurHngton,  22  Vt.  131 ; 
dorf,  53Iowa,  150.     In  Texas  amend-  Coarts  v.  Georgia,  18  id.  15. 

ments  to  writs  are  Hberally  allowed.  ^  Dennison  v.  Blumenthal,  37  111. 

Whittenberg  v.  Lloyd,  49  Tex.  633,  App.  385. 

citing  Porter  v.  Miller,  7  id.  482 ;  May  5  Wright  v.  Westheimer,  2  Idaho^ 

V.  Ferrill,  22  id.  344 ;  Cartwright  v.  962. 

Chabert,  3  id.  261.     See,  also,  Wood  e  Kittridge  v.  Giflford.  62  N.  H.  134. 

V.  Smith,  11  Tex.  367.  T  Baines  v.  Ulman,  71  Tex.  529. 


§§  228,  229.]  .    WEiT  AS  to  pkopekty.  167 

mandate  for  the  arrest  of  the  property  therein  stated ;  unlike 
any  order  of  seizure  issued  to  vindicate  a  pre-existing  lien. 
It  is,  on  the  contr-^ry,  like  an  execution,  which  is  a  command 
to  the  executive  otficer  to  seize  any  lawfully  seizable  property 
of  the  defendant  against  whom  judgment  has  been  rendered. 
It  is  not  merely  to  authorize  the  attachment  of  property  in 
the  defendant's  possession,  but  also  that  which  he  has  fraudu- 
lently disposed  of  or  fraudulently  assigned.' 

S  228.  The- writ  of  attachment,  issued  at  the  beginning  of 
a  suit,  is  really  a  prelirainar}^  execution  dependent  for  its 
ultimate  efficacy  upon  the  rendering  of  judgment  in  favor  of 
the  plaintiff.  It  will  be  better  understood  by  treating  it  as 
such.  It  has  all  the  characteristics  of  a  writ  of  execution  in 
the  first  stage.  The  plaintiff  may  point  out  property  to  the 
officer.  The  officer  may  require  security  for  indemnity  in 
doubtful  cases.  The  property  seized  comes  into  the  lawful 
custody  of  the  officer.  Enough  should  be  attached  to  cover 
the  alleged  indebtedness  of  the  defendant,  without  excessive 
margin.  No  greater  loss  should  be  imposed  on  the  debtor 
than  is  reasonably  necessary  to  do  justice  to  the  creditor  and 
satisfy  the  other  demands  of  the  law.  Competing  attach- 
ments usually  take  rank  in  chronological  order  as  in  execu- 
tions. The  parallel  will  hold  good  in  many  other  particulars. 
When  judgment  in  favor  of  the  attaching  creditor  has  been 
'obtained,  his  original  writ  merely  requires  an  order  of  sale  to 
render  it  equivalent  to  an  execution  —  seizure  having  been 
made  already. 

§  229.  Licible  iwoperty. —  Though  directed  to  no  specific 
property  of  the  defendant,  the  writ  must  be  understood  as  a 
mandate  confined  to  the  seizure  of  that  which  may  be  lawfully 
attached ;  so  that,  though  written  in  general  terms,  it  would 
not  be  applicable  to  things  which  are  not  attachable.  Though 
the  term  property  may  include  lands  as  well  as  goods,  yet  the 
writ  must  be  understood  in  connection  with  the  law  of  the 
place,  and  the  officer  is  bound  so  to  understand  it  and  to  act 
upon  it.  If  land  propert}^  is  seizable,  under  statute  provision, 
upon  failure  to  find  attachable  personal  property,  the  w^rit 
must  be  read  as  conveying  such  contingent  authority.     It 

1  Little  V.  Ragan,  83  Ky.  321 ;  Martz  14  Oreg.  561 ;  Quarl  v.  Abbett,  102  Ind. 
t\  Pfief er,  80  id.  600 ;  Dawson  r.  Sims,    233. 


1G8  PKocEss.  [§§  230,  231. 

mast  not  be  understood  as  a  warrant  for  attaching  anything 
exempt  from  seizure  by  law.  If  exempt  property,  mortgaged 
chattels  in  possession  of  the  mortgagee,  funds  or  assets  validly 
assigned,  and  the  lilie,  are  directly  attached  by  the  officer, 
under  a  valid  writ  empowering  him,  in  general  terms,  to  at- 
tach property  of  the  defendant,  he  cannot  shield  himself 
under  such  writ  for  his  wrongful  act.  For,  as  before  remarked, 
the  writ  is  to  be  understood  in  relation  to  the  law;  to  be  exe- 
cuted only  upon  property  legally  liable,  and  to  be  so  employed 
as  to  subserve  the  purpose  for  which  the  creditor  caused  the 
court  to  issue  it.  If  the  law  has  made  an  exception  in  au- 
thorizing property  to  be  attached  for  debt,  the  general  writ 
must  be  read  as  containing  such  exception.  Illustration  may 
be  found  in  the  provisions  relative  to  exempt  homesteads. 

§  230,  National  hanJis. —  No  attachment  can  be  issued 
against  an  insolvent  national  bank ;  and  the  question  of  in- 
solvency has  reference  to  the  time  of  the  attachment.  Sub- 
sequent acquisition  of  money  or  assets  cannot  be  considered 
in  determining  this  question,  unless  the  right  to  them  existed 
at  the  time  of  the  attachment  in  the  sense  that  the  bank  then 
had  property  in  them.  The  payment  of  large  debts  in  full  by 
the  bank  after  the  levy  does  not  exclude  the  corporation  from 
opposing  the  attachment  as  invalid  by  reason  of  the  insolvency 
of  the  bank.^ 

The  inhibition  extends  to  such  banks  when  they  are  about 
to  become  insolvent ;  ^  but  it  has  been  held  inapplicable  to 
solvent  national  banks,  so  that  if  one  of  them  has  effects  in  a 
state  other  than  that  in  which  it  is  located,  they  may  be  at- 
tached in  a  suit  against  the  bank.' 

§  231.  Preliminary  attachment  of  national  banks  is  held  to 
be  contrar}''  to  the  statute,*  which  prohibits  the  seizure  of  such 
banks  before  judgment.  A  dissolution  bond  given  by  a  na- 
tional bank  as  attachment  defendant  is  pronounced  void,  and 

1  Raynor  v.  Pacific  National  Bank,  ~  Nat.   S.    L.   Bank  v.   Mech.  Nat 

93  N.  Y.  371 ;  R  S.  of  U.  S.,  §  5242 ;  Bank,  89  N.  Y.  467. 

Robinson  v.  National  Bank  of  New-  3  Robinson   v.  Nat.  Bank  of  New- 

berne,  81   N.   Y.   385 ;  37   Am.  Rep.  berne,  81  N.  Y.  385 ;  37  Am.  Rep.  508. 

508.      Held,    in  Raynor's  case,   that  •»  U.  S.  Rev.  Stat.,  §  5342. 
§  5342  (cited)  is  not  repealed  by  §  4  of 
Act  of  July  12,  188a 


§  232.]  WRIT    PROTECTING    OFFICKR.  169 

the  act  is  held  not  an  appearance  hy  the  bank.  An  attach- 
ment judgment  on  such  bond  is  without  effect.  An  "affidavit 
of  illegality  "  made  by  the  surety  on  such  bond  must  be  sus- 
tained, as  the  judgment  is  without  jurisdiction.^  There  can 
be  seizure  only  by  final  process.- 

How  can  the  officer  know  whether  or  not  a  national  bank 
is  insolvent  or  about  to  become  so?  Ordinarily  he  cannot 
know ;  and,  in  any  case,  if  he  does  not,  he  is  not  to  be  held 
pecuniarily  responsible  for  the  want  of  such  knowledge.  The 
writ  being  directed  generally  against  the  property  of  the  de- 
fendant, the  officer  can  only  do  to  the  best  of  his  knowledge ; 
and  if  the  creditor  insists  upon  the  execution  of  the  writ  upon 
property  of  doubtful  liability  he  should  give  an  indemnifying 
bond. 

YII.  The  Writ  Protectixg  the  Officer. 

§  232.  When. —  The  writ  is  a  complete  shield  for  the  sheriff, 
if  it  is  valid  and  issued  from  a  court  clothed  with  jurisdiction, 
and  he  does  his  duty  thereunder.  Whether  the  plaintiff's 
claim  is  just  or  not;  whether,  if  just,  it  is  properly  collectible 
by  the  process  of  attachment  or  not;  whether,  if  so  collecti- 
ble, the  legal  grounds  for  seizure  are  duly  sustained  by  subse- 
quent proof  or  not,  the  officer  is  protected  by  a  writ  in  proper 
form  issued  in  conformity  to  statute  by  rightful  authority,  so 
long  as  he  does  his  dut}^  as  an  officer  under  the  mandate,  and 
does  nothing  more.^  He  would  be  doing  something  more  if 
he  should  knowingly  seize  other  property  than  that  of  the 
defendant,  or  do  so  without  proper  inquiry;  for  the  writ  is 

1  Planters'  Bank  v.  Berry  (Ga.),  18«  Banta  v.  Reynolds,  3  B.  Mon.  80 ; 
S.  E.  137.  Garnet  v.  Wimp,  id.  360;  Owens  v. 

2  Id. ;  Bank  v.  Mixter,  124  U.  S.  Starr,  3  Littell,  230 ;  Lovier  v.  Gilpin, 
727-9.  Compare  Raynor  v.  Bank,  93  6  Dana,  321 ;  Gore  v.  Mastin,  66  N.  C. 
N.  Y.  371.  371;  Ela  v.  Shepard,  32  N.  H.  277; 

3Erskine  v.   Hohnbach,  14   Wall.  Seekins    v.    Goodale,    61     Me.    400: 

613 ;    Underwood   v.   Robinson,    106  Lashus  v.  Matthews,  75  id.  446 ;  Liv- 

Mass.  296 ;  Booth  v.  Rees,  26  111.  45 ;  ingston  v.  Smith,  5  Pet.  90 ;  Bird  v. 

Hill    V.  Figley,  25  id,    156;  State  v.  Perkins,    33    Mich.    28;    Walker   v. 

Foster,    10    Iowa,    435 ;    Walden    v.  Woods,  15  Cal.  66 ;  Manilock  r. White, 

Dudley,  49  Mo.  419 ;  Kirksey  v.  Du-  20  id.  598;  Babe  v.  Coyne.  53  id.  261 : 

hose,  19  Ala.  43 ;  Lott  v.  Hubbard,  44  Stevenson  v.  McLean,  5  Hunipli.  332 ; 

id.   593;  Fulton   v.  Heaton.  1   Barb.  Reams  v.   McNail.  9  id.  542;  Day  r. 

552 ;  Watson   r.  Watson,  9  Ct.  140 ;  Bach,  87  N.  Y.  56 ;  Hines  v.  Cliam- 


170 


PKOCESS. 


[§  233. 


necessarily  confined  to  the  defendant's  property.  When  thus 
outside  the  sphere  of  his  duty  he  cannot  claim  inviolability 
because  of  the  writ  in  his  hand.^  An  invalid  writ  is  no  pro- 
tection to  the  officer  acting  under  it.-  He  must  know  that 
the  writ  is  regular  when  he  is  attaching  property  in  the 
possession  of  a  third  person.'  He  cannot  repair  the  wrong 
done,  in  attaching  under  an  invalid  writ,  by  tendering  the 
property  back  to  the  owner,*  After  such  unlawful  attach- 
ment,, if  the  plaintiff  fail  to  obtain  judgment  for  the  debt;  't 
may  mitigate  the  officer's  offense  if  he  prove  the  debt.^ 

§  233.  When  not. —  A  valid  writ  is  no  protection  to  the  offi- 
cer if  he  disturb  the  lawful  possession  of  a  person  other  than 
the  defendant,  or  attach  property  that  is  not  legally  attach- 
able.^    Though  the  defendant  may  have  been  duly  served  in 


bers,  29  Minn.  7 ;  Mayer  v.  Duke.  72 
Tex.  445 ;  Cross  v.  Phelps,  16  Barb. 
502 ;  Livingston  v.  Smith,  5  Pet.  90. 

1  Carpenter  v.  Scott  (la.),  53  N.  W. 
828;  Wambold  v.  Vick,  50  Wis.  456; 
Eothermel  v.  Marr,  98  Pa.  St.  285 ; 
High  V.  Wilson,  2  Johns.  46 ;  Rinchey 
V.  Stryker,  28  N.  Y.  45 ;  Marsh  v. 
Backus,  16  Barb.  483;  Tufts  v.  Mc- 
Clintock,  28  Me.  424 ;  Morse  v.  Hurd, 
17  N.  H.  246;  Damon  v.  Bryant,  2 
Pick.  411 ;  Robinson  t\  Mansfield,  13 
id.  139 ;  Richardson  v.  Hall,  10  Md. 
399;  Rosenbury  v.  Angel),  6  Mich. 
508;  Sexey  v.  Adkinson,  34  Cal.  346; 
Main  v.  Bell,  27  Wis.  517 ;  Heath  v. 
Keyes,  35  id.  668 ;  Perry  v.  Williams, 
39  id.  339 ;  Williams  v.  Morgan,  50 
id.  548;  Cook  v.  Hopper,  23  Mich. 
511. 

2  Williams  v.  Eikenberry,  25  Neb. 
721 ;  Noble  v.  Holmes,  5  Hill  (N.  Y.), 
194;  Oberfelder  v.  Kavanaugh,  21 
Neb.  483 ;  Connelly  v.  Woods,  31  Kan. 
359.  Compare  McFadden  v.  Whit- 
ney, 51  N.  J.  L.  391. 

3  Van  Etten  v.  Hurst,  6  Hill  (N.  Y.), 
311;  Thorburgh  v.  Hand,  7  Cal.  554; 
Wehle  V.  Butler,  61  N.  Y.  245 ;  Hall  v. 
Waterbury,  5  Abb.  N.  C.  374. 

''Higgins   V.   Whitney,   24    Wend. 


379 ;  Otis  v.  Jones,  21  id.  394 ;  Ball  v. 
Liney,  48  N.  Y.  6.  See  Lyon  v.  Yates, 
52  Barb.  237 ;  Sherry  v.  Schuyler.  2 
Hill  (N.  Y.),  204. 

5Bogert  V.  Philps,  14  Wis.  88;  Mil- 
ler r.  Bannister,  109  Mass.  289 :  Nor- 
ton V.  Kearney,  10  Wis.  443;  Jones 
V.  Lake.  2  id.  210;  Braley  v.  Burns, 
20  Minn.  435;  Hiues  v.  Chambers,  29 
id.  7 ;  Maley  v.  Barrett,  2  Sneed,  501. 

6  Cooper  V.  Newman,  45  N.  H.  339 ; 
Foss  V.  Stuart,  14  Me.  312 ;  Richards 
V.  Daggett,  4  Mass.  534;  Gibson  v. 
Jenney,  15  id.  205;  Howard  v.  W^ill- 
iams,  2  Pick.  80 ;  Bean  v.  Hubbard,  4 
Cush.  85 ;  Lynd  v.  Pickett,  7  Minn. 
184;  Caldwell  v.  Arnold,  8  id.  265; 
Woodbury  v.  Long,  8  Pick.  543 ;  Ford 
V.  Dyer.  26  Miss.  243;  Meade  v. 
Smith,  16  Ct.  346 :  Sangster  v.  Com- 
monwealth, 17  Grattan,  124;  Van 
Pelt  V.  Littler,  14  Cal.  194 ;  Archer  v. 
Noble,  3  Me.  418 ;  Harris  v.  Hanson, 
11  id.  241 ;  State  v.  Moore,  19  Mo, 
369;  Commonwealth  v.  Stockton,  5 
Monroe,  192 ;  People  v.  Schuyler,  4 
Com.  173;  Gibbs  v.  Chase,  10  Mass. 
125;  Miller  v.  Baker,  1  Met  27; 
Morse  v.  Hurd,  17  N.  H.  246 ;  Paxton 
V.  Steckel,  2  Pa.  St  93. 


§  234.]  "VVKIT   PROTECTING    OFFICER.  171 

an  attachment  proceeding,  so  that  citation  has  brought  the 
personal  suit  into  being;  though  the  affidavit  has  been  made 
according  to  statute  and  bond  given;  though  the  writ  has 
been  issued  and  lodged  in  the  sheriff's,  marshal's,  or  other 
executive  official's  hands ;  and  though  the  plaintiff  has  given 
instructions  and  pointed  out  attachable  property,  there  is  not 
3'et  even  a  hypothetical  lien  created,  and  the  defendant  may 
sell  his  effects  and  third  persons  may  buy,  with  perfect  im- 
punity. To  this  rule  there  are  exceptions,  since,  in  some  of 
the  states,  the  lien  becomes  operative  as  soon  as  the  writ  is 
placed  in  the  sheriff's  hands ;  but  generally  it  is  true  that  even 
after  a  perfectly  valid  writ  has  been  issued,  the  debtor  may 
convey  and  deliver  his  property  to  a  third  person  by  a  per- 
fectly hona  fide  transaction,  so  that  the  sheriff  cannot  attach 
it  as  the  property  of  the  defendant  except  at  his  peril, 

§  234.  Froi^erty  held  hi/  mortgagee. —  A  valid  writ  of  attach- 
ment gives  no  authority  to  attach  and  take  possession  of 
property  of  the  defendant  which  is  lawfully  in  the  hands  of 
mortgagees.^  Such  property  can  be  reached  only  by  garnish- 
ment. The  mortgagee  has  the  prior  lien;  and  that  cannot  be 
disturbed,  prejudiced  or  forestalled  by  an  attachment  of  later 
date.  The  mortgagee  is  entitled  to  possession  rather  than 
the  attaching  creditor.  The  possession  of  the  officer  may  be 
good  against  all  except  the  mortgagee  of  chattels  attached.^ 
Such  chattels  have  been  held  attachable  in  the  mortoao-or's 
hands  before  his  default.^  If  mortgaged  chattels  may  be  at- 
tached .under  any  peculiar  practice,  instead  of  being  reached 
by  garnishment,  as  under  the  general  rule,  the  officer  can 
detain  them  only  so  long  as  may  be  necessary  to  take  an  inven- 

1  Fitch    V.    Waite,    5    Conn.    117;  2  First  N.  Bank  r.  North  (S.  D.),  51 

Stockley    v.  Wadman,     1    Houston  N.  W.  96 ;  Simonds  v.  Pearce,  31  Fed. 

(Del.),    350;    TomHnson  v.    Stiles,  4  137;    Howe  v.   Tefift,   15   R  I.  477; 

Dutch.  (N.  J.),  201 ;  Wallace  v.  For-  Powers  v.   Elias,  53  N.v  Y.   Superior 

rest,  2  Harris  &  McHenry  (Md.),  261 ;  Ct.   480 ;    Norris    v.   Sowles,   57  Vt. 

Crowninshield    v.  Strobel,    2    Brer.  360.     See  Salinas  Bank  v.  Graves,  79 

(S.  C.)  80.     Even  if  the  defendant  has  Cal.  193 ;  Roundstone  v.  Holt  (Colo. 

sold  after  the  levy,  the  sale  will  hold  App.),  37  P.  85. 

good  against  a  purchaser  at  an  at-  3  Myers  v.  Cole,  82  Kan.  138. 

tachment  sale,  if  the  writ  was  void  *  Blauvelt  v.  Fechtnian,  48  N.  J.  L. 

for  any  cause     O'Farrell  v.  Heard,  430. 
22  Minn.  189. 


172  PKocEss.  [§§  235,  236. 

toi7  of  tbera ;  he  cannot  permanently  dispossess  the  mort- 
gagee.^ 

§  235.  If  mortgaged  chattels,  in  the  lawful  possession  of 
mortgagees,  are  seized  as  the  property  of  the  mortgagor  who 
is  the  defendant  in  the  attachment  suit  in  which  such  seizure 
is  made,  it  has  been  held  that  the  officer  is  liable  to  the  mort- 
gagees as  a  trespasser,  if  the  writ  is  invalid;  that  the  writ  is 
invalid  if  the  court  issuing  it  has  no  jurisdiction;  and  that 
there  can  be  no  jurisdiction  if  there  is  no  affidavit  made  in  ac- 
cordance with  statute;  and  that  to  be  in  accordance  with 
statute  the  affiant  must  swear  that  the  debt  sued  upon  is  due 
if  that  is  required.  It  was  held  that  the  officer  executing 
such  writ  may  be  sued  in  a  separate  action ;  and,  though  he 
be  the  marshal  of  a  federal  district  acting  under  such  a  writ 
issued  by  a  circuit  court  of  the  United  States,  he  may  be  sued 
by  the  mortgagees  in  a  state  court  as  a  trespasser;  and  he 
cannot  shield  himself  there  by  the  writ  because  of  facial  va- 
lidity, nor  prove  in  defense  that  the  ])roperty  held  by  the 
mortgagees  belonged  to  the  defendant  in  the  attachment 
suit.- 

§  236.  Conflict  ofojnnion. —  On  the  other  hand  it  has  been 
held  that  if  the  attachment  writ  is  valid  upon  its  face  and 
issued  by  a  court  of  general  jurisdiction  Avhen  the  defendant 
is  in  court,  it  will  protect  the  officer  from  any  collateral  at- 
tack upon  him  as  a  trespasser  for  executing  it;  that  though 
the  affidavit  may  not  have  been  made  as  required  by  statute, 
an  attachment  thereunder  is  not  void  but  voidable,  made  under 
a  writ  facially  valid  issued  by  such  a  court ;  that  marshals  are 
court  officers,  bound  to  obey  the  court  and  to  execute  what- 
ever writs,  apparently  legal,  may  be  put  into  their  hands  for 
execution ;  in  fine,  that  the  officer  is  perfectly  protected  by 
such  writ  and  need  not  look  behind  it  for  its  authorizatioi\  * 

This  conflict  of  opinion  turns  upon  a  question  of  jurisdic- 
tion—  which  is  not  now  the  subject  in  hand.  Both  courts 
doubtless  agree  that  when  a  judicial  command  has  been  au- 
thoritatively given,  the  officer  is  bound  to  obey,  and  therefore 
is  not  punishable,  for  obedience.    Both  would  certainly  concur 

iKing  V.  Hubbell,  42  Mich.  597.  3  Same  Case,  109  U.  S.  216. 

2  Matthews  v.  Dens  more,  43  Mich. 
461. 


§  237.]  INDEMNITY   EOXD.  173 

in  the  conclusion  that  the  marshal,  in  the  case  they  were  con- 
sidering, was  under  the  ample  protection  of  the  writ  he  bore 
if  he  attached  property  owned  and  possessed  by  the  attach- 
ment defendant,  provided  they  could  first  agree  that  the 
United  States  Circuit  court  had  jurisdiction  of  the  ancillary 
suit. 

YIII.  Indemnity  Bond. 

§  237.  May  'be  required,  when. —  The  officer  to  whom  a  valid 
writ  is  addressed  is  bound  to  use  all  due  diligence  to  execute 
it,  provided  he  can  do  so  without  perpetrating  injustice  to 
others  and  loss  to  himself.  He  is  not  to  be  the  arbiter  of 
the  possible  injustice,  but  he  is  the  best  judge  as  to  whether 
he  can  execute  his  trust  without  involving  himself  in  a  law- 
suit for  trespass.  I-f  he  has  reasonable  ground  to  believe  that 
the  property  which  the  attaching  creditor  has  pointed  out  for 
seizure  is  really  the  property  of  another  person  than  the  debtor ; 
if  he  has  been  credibly  so  informed,  or  has  been  notified  of 
the  fact  by  a  claimant;  especially  if  the  property  is  in  litiga- 
tion and  the  question  of  ownership  is  doubtful,  he  may  require 
a  bond  of  indemnity  from  the  plaintiff.^ 

Such  bond  may  be  demanded  before  or  after  the  levy,  not 
only  under  an  attachment  writ  but  under  vend.  ex.  or  fi.  fa. 
when  the  ownership  is  doubtful.^  And  it  is  held  that  an  in- 
demnity bond  to  the  sheriff  makes  the  plaintiff  responsible  to 
the  defendant.^  But  it  has  been  said  that  the  attaching  officer 
cannot  demand  an  indemnity  bond  before  selling  disputed 
property,  when  the  order  of  sale  is  regular,  in  an  attachment 
case.*  It  seems  that  he  cannot  demand  it  before  attaching  if 
the  writ  is  not  addressed  to  him.  A  sheriff,  before  serving  an 
attachment  writ  directed  "to  any  constable,"  demanded  an 
indemnity  bond.  It  was  held  that  there  could  be  no  recovery 
on  it,  because  the  writ  was  not  directed  to  hira.^  And,  though 
the  writ  be  addressed  to  him,  if  he  has  made  no  return  upon 
it,  he  cannot  recover  on  the  bond.^ 

1  Mahalovitch  v.  Barlass,  36   Xeb.  3  Knight  v.  Nelson,  117  Mass.  458. 

491.  estate  v.  Manly,  11  Lea.  636. 

2Lavretta  v.   Holcombe  (Ala.),  12  ^Porter  r.  Stapp,  6  Colo.  32. 

So.  789 ;  Screws  v.  Watson,  48  Ala-  6  Wiggin  v.  Atkins,  136  Mass.  292. 
628. 


174:  PEOCESS.  [§§  238,  239. 

If  the  sheriff  has  asked  and  obtained  the  bond  to  secure 
him,  the  court  will  not  cancel  it  on  the  plaintiff's  motion  when 
the  rifjhts  of  interveners  remain  undecided.' 

§  238.  The  attachment  is  to  be  effected  in  the  plaintiff's  in- 
terest—  not  in  that  of  the  officer;  he  has  provoked  the  pro- 
ceeding and  caused  the  writ  to  issue;  he  has  sworn  to  the 
defendant's  indebtedness  and  must  know  the  fact;  he  has 
pointed  out  the  particular  property  which  he  wishes  the  sher- 
iff to  attach,  and  why  should  he  not  protect  that  officer? 
His  refusal  to  do  so,  while  a  junior  attacher  complies  and 
thus  causes  the  sheriff  to  attach,  has  been  held  to  give  the 
latter  lien-rank  above  him.^ 

When  the  attaching  creditor  has  secured  the  sheriff  by 
bond,  he  may  defend  a  suit  for  damages  brought  against  that 
officer,  though  he  cannot  intervene  and  become  a  party  to 
the  record.  lie  may  defend  in  the  sheriff's  name.^  But  the 
sheriff  may  have  him  and  his  sureties  made  parties,  as  indem- 
nitors.* 

§  239.  The  duty  which  the  officer  is  ordered  to  perform  is  a 
delicate  one  in  many  instances;  and  it  is  always  a  bighly  re- 
sponsible one.  It  involves  reparation  to  the  plaintiff  in  dam- 
ages for  any  dereliction  by  which  he  fails  to  attach  property 
and  causes  the  plaintiff  loss  in  consequence.  If  he  does  not 
request  the  attaching  creditor  either  to  indemnify  him  or  to 
point  out  property  for  attachment,  he  is  yet  bound  to  execute 
the  precept  with  diligence  and  faithfulness,  and  is  responsible 
for  his  own  faults  resulting  in  failure. 

When  a  plaintiff,  personally  or  through  his  attorney,  desig- 
nates what  goods  or  other  property  the  officer  must  seize,  he 
is  bound  to  protect  him  in  the  execution  of  such  instructions, 
and  may  be  made  to  indemnify  against  loss  resulting  to  the 
officer  because  of  obedience  to  such  instructions.  In  such 
case  there  is  an  implied  promise  of  indemnification.* 

1  Thebaud  v.  Nat.  Cordage  Co.,  57  reys  v.  Pratt,  2  Dow  &  Clark,  228 ; 
Fed.  567.  Fletcher  v.  Harcott,  Hutton,  55 ;  Betts 

2  Cudahy  v.  Einehart,  60  Hun,  414 ;  v.  Gibbons,  2  Ad.  &  El.  57 ;  Adam- 
Smith  V.  Osgood,  46  N.  H.  178.  son  v.  Jarvis,  4  Bing.  72.    In  Ten- 

3  McKee  v.  Coffin,  66  Tex.  304.  nessee  held  that  the  sheriff  cannot 
*  Stevens  v.  Wolf,  77  Tex.  215.  demand  a  bond  of  indemnity  before 
5  Gower  v.  Emery,  6  Shepley,  79 ;     levying.    Shaw  v.  Holmes,  4  Heisk. 

Ranlett  v.  Blodgett,  17   K  H.    306;     692. 
Bond  V,  -Ward,  7  Mass.  126 ;  Humph- 


§§  240,  241.]  INDEMNITY    BOND.  175 

If  the  sheriff  acts  on  his  own  responsibility  and  thus  causes 
loss  to  himself,  the  plaintiff  who  has  not  given  him  either 
bond  or  instructions  would  not  be  obliged  to  make  good  his 
loss.  Nor  would  he  be  obliged  to  do  so,  if  the  officer  be  in 
fault,  though  a  bond  has  been  given,^ 

§  240.  Common-lmv  right —  It  is  the  right  of  the  person 
charged  with  the  execution  of  the  writ  to  demand  a  bond  of 
indemnity  before  proceeding  in  doubtful  cases.^  Whether 
there  is  express  authority  therefor  by  statute  or  not,  the  com- 
mon law  gives  the  right.*  The  case  is  like  that  of  a  seizure 
under  2,fi.fa.  where  the  right  to  indemnity  is  from  the  com- 
mon law.  Attachment  is  a  preliminary  seizure  to  hold  the 
property  till  judgment  can  be  obtained  and  vend.  ex.  or  some 
other  writ  of  sale  issued.  There  is  therefore  as  much  reason 
for  indemnity  in  the  latter  case  as  in  the  former,  and  the 
same  legal  principle  applies.* 

§  241.  May  delay  till  'bond  furnislied.  —  If  the  officer  finds 
designated  property  in  the  possession  of  another  than  the 
debtor,  held  under  a  claim  of  title,  or  learns  that  it  is  in  pos- 
session of  a  mortgagee,  however  doubtful  may  be  the  posses- 
sor's right  to  hold,  an  indemnity  bond  may  reasonably  and 
judiciously  be  demanded  of  the  plaintiff  before  the  execution 
of  the  writ  upon  such  property.  And  he  may,  when  indem- 
nity has  been  demanded,  delay  the  execution  till  the  bond  be 
executed,  and  refuse  to  act  altogether  if  it  be  refused.  If  in- 
demnity has  been  promised  there  would  seem  to  be  an  implied 
agreement  that  the  officer  need  not  seize  until  protected.^ 

While  an  officer  is  not  obliged  to  execute  the  writ  upon 
property  to  which  the  title  of  the  defendant  is  doubtful  with- 
out being  reasonably  indemnified,  he  cannot  demand  a  bond 

•  Wiggin  V.  Atkins,  136  Mass.  292.     than    the    defendant.     The    plaint- 

2  Smith  V.  Cicotte,  11  Mich.  383.  iff  refused  to  give  the  bond,  and  the 

3  Chamberlain  v.  Beller,  18  N.  Y.  sheriff  notified  the  garnishee  that  he 
118.  had  no  claim  on  the  goods.     It  was 

*  In  Shriver  v.  Harbaugh  et  ah,  37  held  that  the  sheriff  was  not  liable 
Pa.  St.  401,  it  is  stated  that  the  sheriff  for  discharging  the  garnishee,  as  liis 
informed  the  attaching  plaintiff  that  bailee,  when  the  indemnity  had  been 
he  required  a  bond  of  indemnity  for  refused.  See  Rothermel  v.  Marr,  98 
the  reason  that  the  garnishee   had  Pa.  St.  285. 

given  notice  that  the  goods  in  his        5  Smith  v.  Cicotte,  11  Mich.  386. 
possession  were  claimed  by  another 


176  PKOCEss.  [§§  242,  243. 

of  indemnity  in  a  sura  more  than  sufficient  to  secure  him 
against  loss;  and  he  cannot  release  the  property,  where  it  has 
been  rightly  attached,  without  rendering  himself  liable  to  the 
attaching  creditor,^ 

§  242.  Should  not  (May  wlioi  lie  has  not  aslicd  for  hond. — 
A  sheriff  who  has  instructions  to  attach  certain  property 
pointed  out  by  the  attaching  creditor  cannot  escape  the  re- 
sponsibility of  executing  the  writ  on  the  ground  that  he  has 
been  furnished  no  indemnity  bond,  when  he  has  not  asked  for 
any.-  It  is  his  duty  to  go  on  and  seize  and  obey  the  plaintiff's 
instructions  as  far  as  practicable ;  and  it  is  not  a  sufficient 
excuse  for  default  that  he  afterwards  heard  and  erroneously 
believed  that  such  instructions  would  expose  himself  to  an 
action,  and  would  have  resulted  in  no  good  to  the  plaintiff. 
But  if  his  subsequently  received  information  should  prove 
true,  he  might  reasonably  ask  indemnity  after  first  undertak- 
ing to  act  without  any  express  promise,  being  in  such  case 
answerable  to  the  plaintiff  only  for  such  actual  damage  as  may 
have  been  incurred  by  the  latter  by  reason  of  tlie  delay.  The 
sheriff,  having  undertaken  to  attach  specified  property,  is  liable 
for  not  doino-  so,  unless  he  can  show  that  he  could  not  law- 
fully  follow  the  creditor's  instructions.  To  admit  the  excuse 
'  that  he  was  deterred  by  subsequent  information,  etc.,  would 
be  dangerous  and  contrary  to  authority.'^ 

But  if  a  third  person  has  made  a  contest  and  claims  property 
as  his,  after  it  has  been  attached  on  mesne  process  as  that  of 
the  defendant  in  an  attachment  suit,  the  sheriff  may  demand 
indemnity  before  proceeding  further.  If  there  are  several 
creditors,  some  of  whom  indemnify  the  officer  when  requested 
while  others  do  not,  the  former  will  be  the  beneficiaries  of  his 
action  rather  than  the  latter.'' 

§  243.  Lidbility  of  the  2)arties.-^  ^hen  the  officer  has  been 
furnished  with  an  indemnifying  bond,  he  must  yet  comply 
with  all  of  his  own  obligations  before  he  can  avail  himself  of 
the  security  it  gives.     If  property  has  a  rival  claimant  but  is 

1  Wadsworth  v.  Walliker,  51  Iowa,  Ball  v.  Badger,  6  id.  405 ;  Marshall 
605.  V.  Hosmer,  4  Mass.  63. 

2  Perkins  v.  Pitman  34  N.  H.  261.  *  Smith  v.  Osgood,  46  N.  H.  178,  hav- 
3Ranlett  v.  Blodgett,  17  N.  H.  304 ;     ing  reference  to  sale,  and  the  rights 

of  creditors  to  proceeds,  etc. 


§  Qi'i.]  INDEMNITY    BOND.  177 

to  be  attached  as  belono^ino^  to  the  defendant,  and  the  bond 
given  to  indemnify  the  sheriff  contains  the  stipulation  that  he 
shall  inform  the  attaching  creditor  in  case  of  any  suit,  he 
cannot  maintain  any  action  on  the  bond  for  loss  that  might 
have  been  prevented  had  he  complied  with  the  condition. 
IS'or  could  he  recover  of  the  creditor  upon  an  implied  promise, 
inferred  from  the  instructions  to  attach  designated  property, 
for  the  reason  that  the  sl!ipulation  would  preclude  such  an  im- 
plication.^ 

Notwithstanding  the  indemnity  bond,  the  plaintiff  is  not 
entitled  to  an  order  on  the  sheriff  to  pay  money  into  court, 
when  there  is  a  suit,  by  a  claimant  of  the  fund,  still  pending, 
if  by  the  terms  of  the  bond  or  other  agreement  the  sheriff  had 
permission  to  retain  the  money  for  a  reasonable  time  as  ad- 
ditional security.- 

§  2J:i.  JSTotice  to  the  sheriff  of  a  claim  by  a  third  person  is 
admissible  in  evidence  in  a  suit  by  such  person  to  recover 
the  property,  when  it  is  shown  that  the  sheriff  received  it  and 
thereupon  demanded  an  indemnity  bond  of  the  attaching 
creditor.^  Persons  wronged  by  attachment,  who  may  sue 
either  the  attaching  creditor  or  the  sheriff,  are  not  oblig-ed  to 
sue  the  latter  first  because  of  the  fact  that  he  has  received  an 
indemnity  bond  of  the  creditor.     Both  may  be  sued  jointly.* 

In  Missouri,  where  the  bond  must  be  to  the  state  ^  and  must 
be  under  seal,^  a  suit  upon  it  is  held  to  be  the  proper  remedy 
when  the  attachment  has  been  dismissed  —  not  a  suit  of  tres- 
pass against  the  officer."^ 

The  bond  makes  the  plaintiff  bound  to  protect  the  officer 
against  any  loss  or  damage  the  suit  may  cause  him  in  the  line 
of  his  duty ;  and  "  all  damages  and  costs  "  has  been  held  to  in- 
clude his  attorney's  fees.^ 

1  Preston  v.  Yates,  24  Hun,  534.  5  St.  Louis  Dairy  Co.  v.  Sauer,  16 

2Scherr  v.  Little,  60  Cal.  614.  Mo.  App.  1. 

^  Turner  v.  Younker,  76  Iowa,  258,  6  id. ;   State  v.  Thompson,  49  Mo. 

See  Freiberg  v.  Freiberg,  74  Tex.  123 ;  188 :  State  v.  Clay  Co.,  46  id.  231. 

Deere  v.  Wolf,  77  Iowa,  115,  ■  Paddock,   etc.  v.   Mason,  16  Mo. 

^Dyett  V.  Hyman,  129  N,  Y,  351;  App.  320, 

Pool  V.  Ellison,  56  Hun,  108 ;  Walker  » Liudsey  v.  Parker,  142  Mass,  582. 

V.  Wonderlick,  33  Neb.  504  Compare  Brinker  v,  LeinkrauflF,  64 


13 


Miss.  236. 


178  PROCESS.  [§245. 

§  24:5.  Sureties, —  The  sureties  on  an  indemnity  bond  are 
not  liable,  as  those  on  the  officer's  official  bond,  for  damages 
to  attached  goods  when  caused  by  the  sheriff's  neglect.^  But 
where  the  levy  is  unlawful  they  may  be  sued  together  with 
the  sureties  on  the  sheriff's  or  marshal's  official  bond  by  the 
party  suffering  damage  thereby.-  Sureties  on  different  in- 
demnity bonds,  given  by  several  attachers  respectively,  are 
not  jointly  liable  for  wrongful  attachment,  though  the  at- 
tached goods  be  sold  in  bulk  to  one  bidder.'  When  sureties 
are  sued  on  their  oblio:ation,  thev  cannot  defend  on  the  ground 
that  the  sheriff  had  no  right  to  take  tlie  bond.* 

iSraokey  v.  Peters,  66  Miss.  471;  v.  Hoppock,  15  N.  Y.  413;  Knight  u 

Boynton    v.   Morrill,    111    Mass.    4;  Nelson,  117  Mass.  458;  Lislier  u.  Get- 

O'Donohue  ?•.  Simmons,  31  Hun,  367.  man,  30  Minn.  327;  Screws  r.  Wat- 

2  Cabell  V.   Hamilton,  etc.  Co.,  81  son,  48  Ala.  628. 

Tex.  104 ;  Stiles  v.   Hill,  63  id.  431 ;  3  Sparkman  v.  Swift.  81  Ala.  231. 

Lewis  V.  Johns,   34  Cal.  639;   Love-  *  ]\iorgan  v.  Furst,  4  Martin,  N.  S. 

joy  V.  Murphy,  3  Wall.  9;   Herring  (La.)  116. 


CHAPTER  YIL 

LIABILITY  TO  ATTACHMENT. 

L  Debtor's  Property  Generally §§  246-248 

IL  Partnership  Property 249-254 

in.  Property  Held  by  Third  Persons 255-258 

IV.  Property  in  Custodia  Legis 259-261 

V.  Property  Assigned    , 262-266 

VL  Property  Consigned       267-271 

VIL  Choses  in  Action 272-275 

I,  Debtor's  Property  Generally. 

§  246.  There  is  great  uniformity  in  the  statutes  as  to  what 
is  attachable.^  The  real  and  personal  property  of  the  defend- 
ant is  liable  in  every  state  and  territory  within  the  juris- 
diction. His  credits  are  likewise  attachable;  and  , many  of 
the  statutes  expressly  enumerate,  among  liable  property,  his 
stocks  held  in  incorporated  companies,  legacies,  interests  in 
decedents'  estates  and  dividends  in  the  funds  of  insolvent 
estates;  while  some  declare  that  evidences  of  debts  due  him 
in  the  form  of  notes  and  bonds  and  book  accounts,  etc.,  are 
liable  to  attachment.  Those  statutes  which  do  not  expressly 
mention  stocks  and  like  incorporeal  property  generally  include 
them  in  comprehensive  provisions,  such  as  authorize  the  at- 
tachment of  all  species  of  property,  real  or  personal. 

§247.  OivnersMi)  and 2)Ossessiou.—^^Vha.t  the  debtor  owns 
may  be  in  his  own  possession  or  in  the  hands  of  third  per- 
sons. It  is  essential  to  direct  attachment  that  the  property 
should  be  both  owned  and  possessed  by  the  debtor.-  His 
legal  dispossession  by  the  sheriff,  so  that  the  latter,  under  the 
court,  gains  the  control  of  the  property,  is  necessary  to  its 
valid  attachment ;  and  therefore  the  debtor  must  first  have 

1  Facts  sliowmg  property  attach-    Gould  v.   Howell,  32  111.  App.  349 ; 
able :    Kempnerv.  Rosenthal,  81  Tex.    Rumsey  v.  Nickerson,  35  id.  188. 
12.     Facts  showing   it    not    liable:        2 And  must    be     legally    salable. 

Barron  v.  Arnold,  16  R  L  22. 


180  LIABILITY   TO    ATTACII-MEXT.  [§  248. 

the  custody  in  the  capacit}''  of  owner  in  order  that  such  dis- 
possession may  be  legally  effected. 

Property  in  the  possession  of  the  debtor  cannot  be  at- 
tached as  his  if  he  does  not  own  it.^  What  he  holds  in  trust 
as  guardian,  executor,  administrator,  agent,  or  in  any  oflBcial, 
financial  or  other  capacit}^  cannot  be  attached  and  executed 
for  his  debts. 

§  248.  If  he  has  set  apart  any  of  his  own  property  or  funds 
to  pay  a  particular  debt,  the  general  attacliability  of  that 
which  is  thus  devoted  depends  upon  the  question  whether  he 
retains  control  over  it.  If  it  has  been  put  into  the  hands  of 
a  third  person  for  the  use  of  a  particular  creditor,  beyond 
power  of  revocation,  no  other  creditor  can  attach  it  unless  it 
exceeds  the  amount  necessary  to  effect  the  purpose  of  the  de- 
posit; for  the  beneficiary  would  have  a  lien  upon  it  to  that 
amount.  At  an}^  rate,  it  could  only  be  attached  in  the  hands 
of  the  depositary  subject  to  the  lien.  It  has  been  held  that 
funds  set  apart  to  pay  a  particular  debt  falling  due,  in  the 
hands  of  an  agent  for  that  purpose,  under  such  circumstances 
as  to  constitute  a  trust  fund  bevond  the  control  of  the  prin- 
cipal, are  not  attachable  for  his  debts,  though  his  creditors 
have  had  no  notice  of  such  trust.'-  This  disposition  of  a  fund 
is  distinguishable  from  that  of  its  deposit  with  a  clerk  of  court 
as  security  in  place  of  an  undertaking  bond.  In  the  latter 
case  the  fund  remains  the  property  of  the  defendant  without 
any  certainty  that  an}'^  part  of  it  will  have  to  be  used  to  make 
good  his  obligation;  and  the  fund  is  liable  to  attachment,* 
subject  to  the  lien  upon  it. 

These  illustrations  belong  rather  to  the  subject  of  attach- 

1  Shaughnessy  v.  Lininger,  etc.  Co.,  Blum,  60  Miss.  828.    Goods  of  a  firm 

34  Neb.    747 ;  Brown  v.  Watson,  72  may  be    attached  in    the   hands  of 

Tex.  216;  Brown  v.  Scott,  7  Vt  57;  a  surviving    partner,    in    Montana. 

Gallup  V.  Josselyn,  id.  334 ;  Zoller  v.  Cobb  v.  Spieth,  8  Mont.  494 ;  Kruger 

Grant,  56  N.  Y.  Super.  Ct.  279 ;  Chase  r.  Spieth  (Mont. ),  20  P.  664.     Property 

V.    Elkins,    2  Vt    290 ;    Stevens    v.  held  as  collateral  securitj^  may  be  at- 

Briggs,  5  Pick.  177 ;  Walcot  t*.  Pome-  tached  by    tlie   holder.     Deering  v. 

roy,  2  id.  121;  Elliott  v.  Stocks,  67  Warren,  1  S.  D.  35. 

Ala.  270 ;  Goodell  v.  Fairbrother,  12  2  r.  l.  &  M.  Works  v.  Kelley,  88 

E.  I.  233 ;  Moon  v.  Hawks,  2  Aikens,  K  Y.  234. 

390 ;   Carson  v.  Carson,  6  Allen,  397 ;  3  Dunlop  v.  Pat  F.  Ins.  Co.,  74  N. 

Morgan  v.  Ide,  8  Cush.  420 ;  Hughes  Y.  145. 
V.  KeUy,  40  Ct  148.     See  Shannon  v. 


§  24:9.]         DEBTOR  S  PROPERTY  GENERALLY.  181 

raent  in  the  hands  of  third  persons  than  to  direct  attachment, 
which  is  now  under  consideration.  They  are  mentioned  here 
to  show  that  the  debtor  must  have  both  ownership  and  con- 
trol in  order  to  render  property  attachable.  Even  were  he  to 
retain  an  article  of  property  in  his  own  hands,  yet  create  a 
lien  upon  it  in  favor  of  a  particular  creditor  (unless  insolvent 
and  granting  the  lien  by  way  of  giving  fraudulent  preference 
to  such  creditor),  such  article  could  not  be  attached  by  any 
other  creditor  to  the  prejudice  of  the  lien.  It  could  only  be 
taken  subject  to  the  lien.^ 

§  219,  Property  framlnlcntly  transferred. —  "What  has  been 
said  respecting  the  joinder  of  ownership  and  possession  must 
be  qualified  so  far  as  fraudulent  transfers  are  concerned. 
The  simulated  sale  of  land  or  other  property  would  not  pre- 
vent its  lawful  attachment  as  the  property  of  the  fraudulent 
grantor.-  Even  though  he  should  die  before  the  debt  against 
him  should  become  due,  an  attachment  suit  to  enforce  it  might 
be  brought,  on  proper  grounds,  against  his  administrator  or 
other  legal  representative  of  his  estate,  and  the  fraudulently 
transferred  property  might  be  attached,  though  the  grantee 
should  be  in  possession.^  The  reason  is  that  the  debtor  would 
not  cease  to  own  by  reason  of  his  wrongful  act ;  nor  would 
his  right  of  possession  be  lost,  so  far  as  interested  third  per- 
sons are  concerned. 

If  a  judgment  debtor  fraudulently  convey  property,  and  it 
be  attached  while  standing  in  the  grantee's  name  and  that  of 
a  trustee  under  a  trust  deed  from  the  grantee,  to  secure  a  debt, 

1  Goulding  v.  Hair,  133  Mass.  78.  2  Mulock  v.  Wilson  (Colo.),  35  P. 
There  are  two  modes  in  Massachu-  532.  The  sale  being  void,  the  grantor 
setts :  (1)  The  creditor  may  attach  remains  the  owner.  Gregory  v.  Fil- 
mortgaged  property  still  in  tlie  hands  beck.  13  Colo.  382;  Wilcoxen  v. 
of  the  mortgagor,  if  he  pays  the  Morgan,  2  id.  478 ;  Marston  v.  Marston. 
mortgagee  in  ten  days ;  or,  he  may  54  Me.  476 :  Newman  v.  Willets,  52 
attach  and  summon  the  mortgagee  111.  101 ;  Weightman  v.  Hatch,  17  id. 
as  trustee.  Flanagan  v.  Cutler.  121  287.  See,  as  to  statements  made  by 
Mass.  96 ;  Boyntou  v.  Warren,  99  id.  a  purchaser  some  months  before  the 
172;  Hayward  v.  George,  13  Allen,  sale,  Higgins  Carpet  Co.  u.  Hamilton 
66:  Martin  v.  Bayley,  1  id.  381.  So  (N.  J.),  28  A.  716;  Kipp  v.  Chamber- 
he  may  make  the  vendor  a  party  and  lain,  20  N.  J.  L.  656. 
sell  the  surplus  above  his  lien.  An-  3  Pulsifer  v.  Waterman,  73  Me.  233» 
derson  v.  Fitzpatrick  (Ky.),  14  S.  W. 
947. 


182  LIABILITY   TO   ATTACHMENT.  [§§  250,  251. 

only  the  surplus  from  a  sale  under  the  trust  deed  can  avail 
the  attaching  creditor.^  Land  transferred  in  a  state  other  than 
that  in  which  it  is  situated  would  be  validly  transferred  as  to 
one  who  has  assented  to  it  by  taking  a  part  of  the  price.^ 

II.    PaETNEKSHIP    PkOPERTY,  ETC.'' 

§  250.  Suit  against  a  j^artncr. —  All  that  is  attachable  as 
the  right,  title  and  interest  of  a  member  in  a  firm  is  his  share 
of  the  surplus  after  the  debts  of  the  partnership  are  paid.* 
Such  interest  may  be  attached  by  his  personal  creditor.  If 
his  partners  claim  what  is  attached,  and  the  defendant's  inter- 
est is  proved,  it  is  error  to  charge  the  jury  that  they  may  find 
for  the  claimants  in  general  terms.^  If  the  firm  is  insolvent, 
nothing  is  attached  by  attaching  the  interest  of  a  member; 
and  a  purchaser  of  the  interest  of  such  member,  at  a  sheriff's 
sale,  would  get  nothing.  One  partner  can  legally  sell  part- 
nership goods  to  a  customer  in  his  line  of  trade,  or  convey 
them  to  a  creditor  of  the  firm  in  payment,  without  consulting 
the  other  partner  or  partners,  even  when  the  firm  is  insolvent, 
and  though  preference  be  thus  given  to  one  creditor  over  an- 
other (where  there  is  no  statutory  inhibition  of  such  a  prefer- 
ence) —  but  his  creditor  cannot  successfully  attach  as  his  any- 
thing more  than  his  share  of  the  assets  remaining  after  the 
payment  of  the  debts  of  the  firm  as  above  stated.  Attach- 
ment against  a  partner  for  the  wrongful  conduct  of  the  firm's 
business  will  not  warrant  the  seizure  of  another  partner's  pri- 
vate property." 

§  251.  Suit  against  firm. —  Attachment  in  a  suit  against  a 
partnership  must  be  on  grounds  applicable  to  the  firm  or  all 
the  members.^     Any  member  may  defend  such  suit  in  his  own 

1  Brown  v.  Campbell,  100  Cal.  635.  Henry  v.  Cawtborn,  4  Heisk.  (Tenn.) 

~  Cbafee  v.  Fourth  National  Bank,  508. 

71  Me.  514.   A  general  assignment  by  5  Columbia  Bank  v.  Spring,  55  N. 

a  debtor  whose  debts  do  not  exceed  J.  L.  545 ;  Hill  v.  Beach,  12  N.  J.  Eq. 

•  does  not  dissolve  an  attachment  31 ;  Aldrich  v.  Wallace,  8  Dana,  287; 


in  Maine.  Collins  v.  Chase,  71  Me.  Kern  v.  Wyatt,  89  Va,  885 ;  Hersh- 
434 ;  Insolvent  Act  of  1878,  §  59.  field  v.  Claflin,  25  Kan.  166 ;  Clagett 

3  See  g§  377-379.  v.  Kilbourne,  1  Black,  346. 

4Staats  V.  Bristow,  73  N.  Y.  264;  6  Wortbley  v.  Goodbar,  53  Ark.  3. 
Peck   V.   Fisher,   7   Cush.    386 ;    Me-        -  Collier  v.  Hanna,  71  Md.  253 ;  Hin- 

man  v.  Opera  Co.,  49  IlL  App.  135. 


251.] 


PARTNERSHIP  PROPERTY,  ETC. 


183 


narae.^  Partnership  effects  cannot  now  be  seized  under  at- 
tachment or  execution  for  the  debt  of  a  member  of  the  firm 
in  Texas;-  but  Stayton,  J.,  in  the  case  just  cited,  said  that 
the  opposite  rule  is  very  generally  held,  and  was  observed  in 
that  state  prior  to  the  adoption  of  the  Eevised  Statutes.^  And 
he  adds:  "The  same  rule  seems  to  exist  in  the  state  of  New 
York."  *  When  an  article  of  firm  property  in  that  state  is 
validly  converted  into  the  separate  property  of  one  of  the 
partners,  its  liability  for  the  firm's  debts  no  longer  continues.^ 

When  a  debtor  mortgaged  his  stock  of  goods  to  secure  his 
retiring  partner  and  others,  and  preferred  the  partner  —  the 
goods  being  of  value  sufficient  to  secure  him  only  —  the  trans- 
fer was  held  fraudulent  and  the  goods  attachable." 

In  a  suit  against  a  partner,  the  attachment  of  his  firm's 
property  as  wholly  his  is  held  not  supported  by  proof  of  his 
interest.'^ 

It  is  trespass  to  attach  and  remove  partnership  goods  on 
mesne  process  against  one  partner  for  his  personal  debt,  it  is 
held,  but  this  is  not  the  case  everywhere.^ 


1  Davis  V.  Megroz,  55  N.  J.  L.  437. 

2  Lee  V.  Wilkins,  65  Tex.  295.  See 
Rich  V.  Solari,  6  Mackey,  371. 

3  Citing  De  Forrest  v.  Miller,  42 
Tex.  38;  Longcope  v.  Bruce,  44  id. 
436;  Bradford  v.  Johnson,  id.  383; 
Thompson  v.  Tinnen,  25  Tex.  Sup.  56 ; 
Rogers  v.  Nichols,  20  Tex.  28. 

*  Citing  Moody  v.  Payne,  2  Johns. 
Ch.  548 ;  Walsh  v.  Adams,  3  Denio, 
127 ;  Schrugham  v.  Carter,  12  Wend. 
131;  Phillips  v.  Cook,  24  id.  388; 
Waddell  v.  Cook,  2  Hill,  47 ;  Adkins 
V.  Saxton,  77  N.  Y.  195.  See  Zolleru. 
Grant.  56  N.  Y.  Superior  Ct.  279.  In 
Lee  V.  Wilkins,  supra,  it  was  held 
that  a  firm  had  no  cause  of  action 
against  an  attaching  creditor  for 
seizing  their  goods  in  his  suit  against 
a  partner,  which  seems  not  quite  ac- 
cordant with  the  point  of  the  decision 
above  stated. 

sStanseli  v.  Fleming,  81  Tex.  298; 
Kendall  v.  Hackworth,  66  id,  499; 


Swearingen  v.  Bassett,  65  id.  272; 
Weaver  v.  Ashcrof  t,  50  id.  427 ;  White 
V.  Parish,  20  id.  689. 

^  Taylor  v.  Missouri  Glass  Co.  (Tex. 
App.),  25  S.  W.  466. 

T  ZoUer  V.  Grant,  56  N.  Y.  Superior 
Ct.  279. 

8  Sanborn  v.  Royce,  132  Mass.  594. 
The  court  say  that  the  question  before 
them  had  never  been  decided  in  Mas- 
sachusetts, though  subjected  to  much 
discussion  and  conflicting  opinion 
elsewhere.  And  they  cite  the  follow- 
ing authorities  in  support,  as  "more 
in  accordance  with  just  legal  princi- 
ples "  than  those  which  are  opposed 
to  their  proposition :  Bank  v.  Car- 
rollton  R.  R.,  11  Wall.  624-9;  Crop- 
per V.  Coburn,  2  Curtis,  465 ;  Burnell 
V.  Hunt,  5  Jur.  650 ;  Garvin  v.  Paul, 
47  N.  H.  158 ;  Darborrow's  Appeal, 
84  Pa.  St.  404 ;  Haynes  v.  Knowles, 
36  Mich.  407 ;  Levy  v.  Cowan,  27  La. 
Ann.  556.     See  Tucker  v.  Adams,  63 


184  LIABILITY    TO    ATTACHMEXT.  [§  252. 

§252.  Non-i'csident  i)artner. —  The  non-residence  of  a  co- 
debtor  is  no  ground  for  attaching  the  resident  debtor's  prop- 
erty;^ nor  that  of  a  co-contractor  for  attaching  both  con- 
tractors' property ;  -  but  the  residence  of  one  contractor  within 
the  state  will  not  shield  the  property  or  interests  of  his  co- 
contractor,  living  out  of  the  state,  from  attachment.' 

In  West  Virginia  a  creditor  can  give  no  advantage  over 
other  creditors  b}^  attaching  partnership  property,  except  as 
to  the  interest  of  a  non-resident  partner.*  In  Mississippi,  under 
the  code  of  1892,  attachment  will  lie  against  a  non-resident 
partner,  though  the  other  members  of  the  firm  are  residents.^ 

"Whether  partnership  eifects  are  attachable  in  a  suit  against 
one  member  of  the  lirm,  who  is  a  non-resident,  upon  a  debt 
contracted  by  the  partnership,  depends  upon  the  character  of 
the  obligation:  whether  it  is  joint  or  joint  and  several.  If 
the  obligation  sued  upon  is  joint,  partnership  effects  are  not 
attachable  in  such  suit;"  but  if  it  is  joint  and  several,  the  rule 
is  otherwise."  It  is  joint  by  the  law  of  partnership  without 
statutory  modification:  so  all  the  partners  must  be  sued  in 
order  to  attach  property  of  the  firm. 

In  a  suit  against  two  joint-debtors,  attachment  will  hold 
only  when  the  affidavit  is  sufficient  against  both.^  It  has  been 
held  that  if  both  are  residing  out  of  the  state,  and  the  cred- 
itor finds  property  of  one  of  them  within  the  state,  he  may 
attach  it  as  that  of  a  non-resident  debtor  without  mentionino: 
the  co-obligor.^  Any  one  of  several  joint-debtors  is  liable  to 
be  sued  by  attachment.^''  Joint  and  several  debtors  may. be 
sued  by  attachment  singly  or  all  together.^^ 

N.  H.  361 ;  Clement  v.  Little,  43  id.  '  Green  v.  Pyne,  1  Ala.  235 ;  Conk- 

563 ;  Hill  v.  Wiggins,  31  id.  292.  lin  v.  Harris,  5   id.   213.     See  Chip- 

1  Mills  V.  Brown,  2  Met  (Ky.)404;  man's  Case,  14  Johns.  (N.  Y.)  217; 
Duncan  v.  Headlej-,  4  Bush,  45.  Smith's  Case,  16  id.  102 ;  Mersereau  v. 

2  Taylor  v.  McDonald,  4  Ohio,  149.     Norton,  15  id.  179;  Bobbins  f.  Cooper, 
2  Jefferson  County  r.  Swain,  5  Kan.     6  Johns.   Ch.  186;  Mills  v.  Brown,  2 

376.  Met.  (Ky.)  404. 

4  Andrews  v.  Mundy,  36  W.  Va.  23.  §  Hamilton  v.  Knight,  1  Blackf.  25 ; 

5  Cohen  v.  Gamble  (Miss.),  15  So.  Bartle  v.  Coleman,  6  Wheat  475 ; 
236 ;  Miss.  Code  of  1892,  §  127.     See  Hadley  v.  Bryars,  58  Ala.  139. 

Id.,  §  2353.  9  Dobbs  v.  The  Justices,  17  Ga.  624. 

«  Wiley  V.  Sledge,  8  Ga.  533 ;  Wal-  lo  Austin  v.  Burgett  10  la.  302. 

lace  V.  Galloway,  5   Coldw,  (Tenn.)  n  Matter  of  Smith,  16  Johns.  103; 

510 ;  Barber  v.  Robeson,  15  N.  J.  L.  17.  Hadley  v.  Bryars,  58  Ala.  139. 


§  253.]  PARTNERSHIP    PROPERTY,  ETC.  185 

Though  a  partnership  may  have  been  domiciliated  in  a  state, 
and  there  liable  to  be  sued  on  ordinary  process,  yet,  upon  its 
dissolution,  its  assets  may  be  attached  for  a  debt  of  the  firm,  if 
those  lately  composing  it  are  non-residents,  provided  they  are 
still  the  owners  of  the  assets.^ 

If  one  partner  resides  in  the  state,  the  non-residence  of  his 
copartner  is  no  ground  for  an  attachment  bill  in  chancery 
against  both  partners  and  against  the  effects  of  both.^  If  one 
partner  has  absconded,  attachment  would  hold  against  his  in- 
terest only.^  If  all  the  partners  of  a  firm  have  absconded, 
attachment  lies  against  the  property  of  the  firm.* 

In  a  suit  against  an  insolvent  firm,  the  interest  therein  of 
an  absconding  partner  was  attached ;  and  the  attachment  was 
attacked  on  the  ground  that  the  absconding  partner  had  no 
attachable  interest.  The  court  refused  to  vacate  the  attach- 
ment on  that  ground.^  Of  course  the  defendant  had  no  cause 
to  attack  the  proceeding  if  nothing  of  his  had  been  molested. 

A  writ  of  attachment  may  be  issued  against  the  property 
of  a  domestic  corporation  in  the  county  of  its  location  at  the 
suit  of  a  resident  just  as  though  it  were  a  natural  person ;  ^ 
and  against  that  of  corporations  not  existing  under  the  law  of 
the  state  where  it  is  attached.'' 

§  253.  Property  in  common  not  like  that  in  lyartnersliip. — 
A  debtor's  property  is  none  the  less  liable  for  his  debts  by 
reason  of  its  being  a  part  of  something  held  in  common.  If 
the  thing  so  held  is  indivisible,  the  part  owned  by  the  defend- 
ant may  be  levied  upon  as  an  undivided  interest.  If  it  is 
divisible  the  officer  would  be  obliged  so  to  make  the  levy, 
unless  the  defendant  and  the  other  owners  in  common  should 
consent  to  a  separation  of  the  seizable  portion.  Though  part- 
nerships, particularly  commercial  partnerships,  are  governed 
by  usages  peculiar  to  themselves,  in  some  respects,  with  re- 

iLobdell  V.  Bushnell,  24  La.  Ann.  4  Leach  v.  Cook,  10  Vt.  239. 

295.      In  Indiana  it  was   held  that  5  Buckingham  v.  Swezey,  25  Hun, 

when  the  suit  is  against  a  partner-  84. 

ship  composed  of  non-residents,  their  ^  Michigan  Dairy  Co.  v.  Runnels, 

property  is  attachable.     Voorhies  v,  96  Mich.  109 ;  Howell's  Stat,  g§  7986, 

Hoagland,  6  Blackf.  232.  8137. 

-  Wallace  v.  Galloway,   5   Coldw.  "  Phila.  etc.   R  Co.  v.  Kent,  etc.  R. 

(Tenn.)  510.  Co.,  5  Houston  (Del.),  127. 

3  Bogart  V.  Dart,  25  Hun,  395. 


186  LIABILITY    TO    ATTACHMENT,  [§  254. 

gard  to  the  attachment  of  a  partner's  interest  in  a  firm,  the 
interest  of  the  defendant  in  property  held  in  comraon  may 
readily  be  reached  by  an  officer  in  executing  a  writ  of  attach- 
ment.^ 

In  making  the  levy  on  the  defendant's  part  of  intermingled 
property,  it  may  be  necessary  to  take  and  detain  the  whole  for 
a  reasonable  time.-  The  inconvenience  and  even  loss  that 
may  thus  occur  to  the  joint  owners  with  the  defendant  are 
incident  to  the  attachment,  and  ordinaril}''  neither  the  officer 
nor  the  attaching  creditor  is  pecuniarily  responsible  therefor.^ 
If  mortgaged  chattels  are  attachable,  the  attachment  must  be 
laid  in  the  hands  of  the  mortgagees;^  yet  the  officer  may  take 
and  temporarily  detain  them  for  the  purpose  of  making  an 
inventory.''  The  attachment  is  subject  to  the  lien,  and  the 
mortgagees  retain  the  property. 

§  254:.  Froi)crUj  of  married  woman  who  is  sole  trader. — 
Whether  a  married  woman's  property  may  be  attached  de- 
pends upon  the  character  in  which  she  holds  it.  If  she  is 
doing  business  as  a  sole  trader,  her  property  is  liable  for  the 
debts  which  she  contracts.  When  she  does  business  on  her 
separate  account,  and  her  property  has  been  legally  set  apart 
from  that  of  her  husband,  and  this  separation  of  business  and 
property  is  made  known  to  the  public  by  public  records,  that 
which  belongs  to  her  or  is  earned  by  her  ought  not  to  be 
liable,  to  attachment  or  execution  for  her  husband's  debts.® 
But,  being  a  married  w^oman,  she  is  presumed  to  be  doing 
business  under  her  husband's  direction,  and  what  she  has  and 
what  she  makes  is  presumably  liable  for  the  husband's  debts, 

1  Veach  v.   Adams,    51    Cal.   609 ;  all  by  claiming  the  whole.  Blotchy  v. 

Bernal  v.  Hovions,  17  id.  541 ;  Sears  Caplan  (Iowa),  59  N.  W.  204. 
V.  Gearn,  7  How.  Pr.    383;  Stouten-        3Smokey  v.  Peters,  66  Miss.  471; 

burgh  V.  Vandenburgh,  id.  229 ;  Car-  Reed  v.  Howard,  2  Met  36 ;  King  v. 

ter  V.  Jarvis,  9  Johns.  143 ;  Gall  v.  Hubbell,  42  Mich.  597 ;  Sibley  v.  Fer- 

Hinton,  7  Abb.  Pr.  120;  Walker  v.  nie,  22  La.  Ann.  163;    Lawrence  v. 

Fitts,   24   Pick.    191 ;  Buddington  v.  Burnham,  4  Nev.  361 ;  Remington  v. 

Stewart,  14  Ct.  404 ;  Marion  v.  Faxon,  Cady,  10  Ct  44.  See  Melville  r.  Brown. 

20  id.  486.     See  Frost  v.  Kellogg,  23  15  Mass.  82 ;  Copp  v.  Williams,  135 

Vt  308.  id.  401. 

-  Intervenors   claiming    goods   in-        ^  Anderson  v.  Doak,  10  Ired.  295. 
termixed  with  other  goods  may  lose        ^  King  v.  Hubbell,  42  Mich.  597. 

6  Arrington  v.  Screws,  9  Ired.  42. 


§  255.]  PROPERTY    HELD    BY    THIRD    PERSONS.  187 

unless  she  has  statute  protection  or  the  presumption  is  re- 
moved in  some  legal  way.^ 

When  both  husband  and  wife  are  non-residents,  and  the 
action  is  against  both,  attachment  may  lie.-  And  because  her 
status  as  to  place  is  governed  by  that  of  her  husband,  she  is 
deemed  to  reside  in  the  state  of  his  residence,  and  her  prop- 
erty is  amenable  to  attachment  as  that  of  a  non-resident  when 
the  suit  is  against  both  her  and  him,  though  she  may  actually 
live  in  the  state  where  the  suit  is  instituted  and  the  attach- 
ment sued  out.^ 

III.  Property  Held  by  Third  Persons. 

§  255.  Temjmrary  detention. —  Property  of  the  defendant 
lawfully  in  the  possession  of  third  persons,  though  it  may  be 
subject  to  garnishment,  cannot  be  actually  seized  by  the  sher- 
iff under  a  writ  of  attachment  and  taken  from  such  persons.^ 
Under  statute  authorization  some  such  pro|3erty  may  be  tem- 
porarily taken  for  the  purpose  of  making  an  inventory  or  of 
separating  it  from  other  attachable  things  which  the  third 
possessor  does  not  claim  to  hold,  but  there  can  be  no  detention 

1  In     Massachusetts      a     married  favor  of  wife.    Troy  v.  Sai-geant,  133 

woman  doing  business  on  her  own  Mass.  408. 

account  must  file  a  certificate  of  the        -  In   Alabama,   under  the  act    of 

fact  with  the  town  clerk,  in  order  to  1846,  to  subject  the  wife's  separate 

avail  herself  of  the    statute   there,  estate  to  the  satisfaction  of  a  debt 

which  exempts  the  property  of  such  contracted  by  her  before  marriage, 

from  liability  for  the  husband's  debts,  though  the  estate  was  secured  to  her 

Act  of  1862,  ch.  198,  g  1 ;  Chapman  by  ante-nuptial  contract.    Crocker  v. 

V.  Briggs,  11  Allen,  546.     Held  appli-  Clements,  23  Ala.  296. 
cable  to  personal  property  only.  Ban-        3  Baldwin  v.  Flagg,  43  N.  J.  L.  495 ; 

croft  V.  Curtis,  108  Mass.  47.    Carry-  Hackettstown  Bank  v,  Mitchell,  28 

ing   on   separate    business    includes  id.  516 ;  Hunt  v.  Hunt,  72  N.  Y.  217 ; 

farming  as  well  as  trading.    Snow  v.  Greene  v.  Greene,  11  Pick.  410;  Ross 

Sheldon,    126   Mass.   332 ;    Chapman  v.  Edwards,  52  Ga.  24,  held  that  the 

V.  Foster,  6  Allen,  136 ;  Feran  v.  Ru-  attaclxment  does  not  lie  against  a 

dolphsen,  106  Mass.  471.     See  Proper  lunatic  and  his  committee,  though 

V.  Cobb,  104  Mass.  589.     It  includes  non-residents. 

keeping  a  boarding-house :  and  debts        ^  Hanchett  v.  Bank,  25  HI,  App.  274. 

due  to  her  for  board  may  be  attached  Money  collected  by  an  attorney  at 

by  her  husband's  creditors  if  she  has  law  is  not  attachable  as  his  client's — 

not  filed  the  certificate.     Harnden  v.  not    being    identified.      Maxwell    v. 

Gould,  126  Mass.  411 ;  Dawes  v.  Ro-  McGee,  12  Cusli.  137. 
dier.  125  id.  421.    Insurance  policy  in 


ISS  LIABILITY    TO    ATTACHMENT.  [§  256. 

of  such  property  to  await  the  judgment  in  the  attachment 
suit.  And  whatever  is  lawfully  in  the  possession  of  a  lien- 
holder  cannot  be  directly  attached  unless  the  lien  be  first 
removed  by  payment  or  otherwise.^ 

The  attaching  creditor  cannot  dispossess  third  persons  of 
their  possession  for  the  same  reason  that  the  debtor  cannot ; 
he  acquires  no  greater  right  to  take  property  under  his  writ, 
through  the  officer,  than  the  defendant  has  in  his  personal 
capacity.'- 

§  25G.  Uoiihtf id  rUjlit  of  property. —  If  there  is  a  question 
whether  the  ownership  and  rightful  possession  is  in  the  vendor 
or  vendee,  the  attaching  creditor's  right  to  seize  and  take  pos- 
session depends,  of  course,  upon  the  settlement  of  that  ques- 
ition  in  any  given  case.  If  the  vendor  is  his  debtor  against 
whom  he  proceeds  in  an  attachment  suit,  the  property  sold 
cannot  be  attached  after  actual  or  constructive  delivery  to  the 
vendee.  If  the  vendee  is  the  debtor  of  the  attaching  creditor, 
the  property  sold  cannot  be  attached  in  a  suit  against  that 
debtor  unless  he  has  acquired  ownership  with  the  right  of  pos- 
session. Goods  ill  transitu  afford  illustrations  of  such  ques- 
tions: the  attachability  of  propert}''  alwa3's  turning  upon  the 
right  of  possession  on  the  part  of  the  debtor  in  the  attach- 
ment suit.^  Even  if  there  has  been  delivery  of  property  to 
the  vendee,  or  agreement  to  sell  when  there  has  been  no  de- 

1  Williams  v.  Morgan,  50  Wis.  548 ;  Tucker,  1  Pick.  389 ;  Sargent  v.  Carr, 
Perry  v.  Williams,  39  id.  339 ;  McNeill  13  Me.  396 ;  Henry  v.  Quackenbush, 
V.  Glass,  1  Martin,  N.  S.  (La.)  261;  48  Mich.  415;  Lyle  v.  Barker.  5  Bin. 
Skillman  v.  Bethany,  2  id.  104 ;  Lam-  457 ;  Moore  v.  Murdock,  26  Cal. 
beth  V.  TurnbuU,  5  Rob.  (La.)  264;  514;  Rix  &  Stafford  u  Silknitter,  57 
Carpenter  v.  Dresser,  72  Me.  377 ;  Iowa,  265 ;  Seymour  v.  Newton,  105 
Brown  well  v.  Carnley,  3  Duer,  9;  Mass.  272;  Inslee  v.  Lane,  57  N.  H. 
Stearns  i\  Dean,  129  Mass.  139;  Schep-  454;  Hartford  r.  Jackson,  11  id.  145. 
ler  V.  Garriscan,  2  Bay,  224 ;  Mitchell  -  Rix  v.  Silknitter,  57  Iowa,  265 ; 
V.  Byrne,  6  Rich.  171;  Thompson  v.  Stephenson  u  W^alden,  24  id.  84 ;  Oli- 
Rose,  16  Conn.  71 ;  De  Wolf  v.  Dear-  ver  v.  Lake,  3  La.  Ann.  78;  Hough- 
born,  4  Pick.  466 ;  Rodega  v.  Perker-  ton  v.  Davenport,  74  Me.  590 ;  Round- 
son,  60  Ga.  516;  Wolfe  v.  Crawford,  stone  v.  Holt  (Colo.  App.),  37  P.  35. 
54  Miss.  514;  Townsend  v.  Newell,  14  ^  Wolfe  v.  Crawford,  54  Miss.  514; 
Pick.  332;  Robinson  v.  Mansfield,  13  Scofield  r.  Bell.  14  Mass.  40;  Meldrum 
id.  139;  Picquet  v.  Swan,  4  Mason,  f.  Snow,  9  Pick.  441 ;  Hatch  t*.  Bailey, 
443;  Haven  v.  Low,  2  N.  H.  13;  12  Cush.  27;  Hatch  t).  Lincoln,  id.  3L 
Morse  v.  Hurd,  17  id.  246 ;  Badlam  v. 


§§  257,  258.]       PROPERTY    HELD    BY    THIRD    PERSONS.  189 

livery,  it  is  not  attachable  as  his  while  some  condition  stands 
unperformed,  the  doing  of  which  is  essential  to  his  title.^ 

§257.  Property  held  hy  lessee,  etc. —  Property  not  owned, 
but  held  by  a  tenant,  lessee,  or  mere  borrower,  cannot  be  at- 
tached under  a  writ  directed  against  the  property  of  the  per- 
son thus  temporarily  having  possession.-  This  is  too  plain  for 
comment;  but  the  facts  proved  in  suits  with  respect  to  pecul- 
iar contracts  between  landlords  and  tenants,  lenders  and  bor- 
rowers, etc.,  are  often  complicated,  and  of  such  character  as 
to  throw  the  real  ownership  into  doubt.  One  cannot  antici- 
pate such  complications  so  as  to  subject  them  to  any  more 
definite  rule  than  that  broadly  given  in  the  first  sentence  of 
this  paragraph.^  If  an  officer  attaches  the  tenant's  goods  in 
a  leased  building,  and  the  tenant  sells  his  unattached  leasehold, 
and  the  purchaser  sublets  to  the  officer,  the  latter's  possession 
is  presumed  to  be  within  the  knowledge  of  junior  attachers 
and  subsequent  purchasers.  They  are  also  deemed  to  have 
notice  of  the  landlord's  rights.*  In  Alabama  the  landlord 
may  enforce  his  lien  for  rent  by  attachment,  notwithstanding 
a  cession  to  creditors  by  his  insolvent  tenant.^  The  proceed- 
ing must  be  against  the  propert3Miable  for  the  rent  —  not 
other  property.^ 

§  258.  Fixtures. —  As  between  landlord  and  tenant,  fixtures 
are  movable  by  the  latter  or  not,  in  many  cases,  according  to 
the  intention  of  the  parties ; "  and,  if  movable  by  him,  they 
may  be  attached  as  personal  property  in  a  suit  against  him.^ 

1  Robinson  v.  Mansfield,  13  Pick.  Waddell  (la.),  56  N.  W.  650 ;  Shell- 
139 ;  Townsend  v.  Newell,  14  id.  332 ;  hamer  v.  Jones  (la.),  54  N.  W.  363 ; 
McFarland  v.  Farmer,  42  N.  H.  386 ;  Bray  v.  Wise,  82  la.  582 ;  1  Jones  on 
Buckmaster  v.   Smith,   22   Vt    203 ;  Liens,  ^"g  698-9. 

Woodbury  v.  Long,  8  Pick.  543.     See  ^  Le  Doux  v.  Johnson  (Tex.),  23  S. 

Steen  v.  Harris,  81  Ga.  681.  W.  902. 

2  Morgan  t'.  Ide,  8  Cush.  420;  Chan-  nicKleroy  v.  Cantey,  95  Ala.  295. 
dler  V.  Thurston,  10  Pick.  205 ;  Lewis  6  Stephens  n  Adams,  93  Ala.  117. 
V.  Lyman,  22  id.  437;  Coe  v.  Wil-  As  to  the  attachment  of  a  crop  for 
son,  46  Me.  314  But  see  Hutchinson  rent,  see  Giddens  v.  Boiling,  93  Ala. 
V.  Bidwell  (Oreg.),  33  P.  560,  as  to  cor-  92. 

po ration   property   leased    to  stock-  "  Morey    v.   Hoyt,   63  Ct.   543  (see 

holders.  Capen  v.  Peckham,  33  id.  95) ;  Lina- 

3 The  resident  owner  of  a  farm  has  han  v.  Barr,  41  id.  473;  Ii-on  Co.  v. 

no  lien  on  the  live-stock  of  his  resi-  Black,  70  Me.  473 ;  Hopewell  Mills  v. 

dent  tenant  for  pasturage,  as  such  Bank,  150  Mass.  519. 

tenant  is  not  a  herder.     Wright  v.  ^  Morey  v.  Hoyt,  supra;   McNally 


190 


LIABILITY    TO    ATTACHMENT. 


[§  259. 


The  attaching  creditor  has  no  greater  right  than  the  tenant; 
and,  as  a  general  rule,  the  latter  cannot  remove  fixtures  after 
his  lease  has  expired,^  Permanent  fixtures  belong  to  the 
realty  to  which  they  are  fastened  and  are  not  attachable  as 
personalty.^ 

lY.  Property  in  Custodia  Legis.' 

§  259.  When  not  attachaMe.—  The  rule  that  third  persons, 
lawfully  possessing,  cannot  be  disturbed,  extends  to  officers 
who  hold  property  in  an  official  capacity;  to  sheriffs  and  m-ar- 
shals  who  hold  upon  attachments  ah-eady  executed  or  under 
other  seizure;  to  all  whose  possession  is  such  that  the  prop- 
erty held  is  in  the  custody  of  the  law.*  Though  he  cannot 
disturb  the  possession  already  acquired,  an  officer  may  levy 
on  goods  in  the  custody  of  another  officer,  who  must  indorse 
the  second  attachment  on  the  first.' 

When  property  in  the  custody  of  the  law  has  been  reduced 
to  money,  or  when  money  is  in  such  custody  however  it  may 
have  reached  the  possession  of  the  lawful  official  custodian,  it 
is  not  attachable.^ 


V.  Connolly,  70  Cal.  3;  Cooper  v. 
Johnson,  143  Mass.  108;  Heflfner  v. 
Lewis,  73  Pa.  St.  302;  Oberton  v. 
Williston,  31  id.  155;  Lamphere  v. 
Lowe,  3  Neb.  131 ;  State  v.  Bonham, 
18  Ind.  231. 

1  Burke  v.  HoUis.  98  Mass.  55 ;  Gaf- 
field  V.  Hapgood,  17  Pick.  192 :  Ding- 
ley  V.  Buffum,  57  Me.  381 ;  Beers  v. 
St.  John,  16  Conn.  332;  Torrey  v. 
Burnett,  38  N.  J.  L,  457;  Carlin  v. 
Ritter,  68  Md.  478;  Davis  v.- Moss,  38 
Pa.  St.  346;  Haflick  v.  Stober,  11 
Ohio  St.  482 ;  Youngblood  v.  Harris, 
68  Ga.  630 ;  Whipley  v.  Dewey,  8  Cal. 
36;  Kutter  v.  Smith,  2  Wall.  491; 
Pugh  V.  Arton,  L.  R  8  Eq.  626; 
Weeton  v.  Woodcock,  7  Mees.  &  W. 
14 ;  Minshall  v.  Lloyd,  3  id.  450. 

2  Stout  V.  Stoppel,  30  Minn.  58. 

3  §§  393-411,  428-443. 

<  Powell  V.  Rankin,  80  Ala.  316: 
Paradise  v.  Farmers'  and  Merchants' 
Bank,  5  La.  Ann.  710;  State  ex  reL 


etc.  V.  Ellis.  Judge,  45  id.  — ;  Hardy 
V.  Tilton,  68  Me.  195 ;  Walker  v.  Fox- 
croft,  2  id.  270 ;  Strout  v.  Bradbury, 
5  id.  313 ;  Odiorne  v.  Colley,  2  N.  H. 
66 ;  Moore  v.  Graves,  3  id.  408 ;  La- 
throp  V.  Blake,  3  Fos.  46 ;  Burroughs  v. 
Wright,  16  Vt  619 ;  West  River  Bank 
V.  Gorham,  38  id.  649 ;  Watson  v. 
Todd,  5  Mass.  271 ;  Vinton  v.  Brad- 
ford, 13  id.  114;  Thompson  v.  Marsh, 
14  id.  269 ;  Burlingame  v.  Bell,  16  id. 
318;  Robinson  v.  Ensign,  6  Gray, 
300 :  Benson  v.  Berry,  55  Barb.  620 ; 
Reed  v.  Sprague,  34  Ala.  101 ;  Har- 
binson  v.  McCartney,  1  Grant,  172; 
Wendell  v.  Pierce,  13  N.  H.  502; 
Beers  v.  Place,  36  Conn.  578 ;  Roberts 
V.  Dunn,  71  IlL  46 ;  Voorhies  v.  Ses- 
sions, 34  Mich.  99 ;  Levy  v.  Lehman, 
38  La.  Ann.  9. 

5  White  V.  Culter,  12  HI.  App.  38; 
Acts  of  1874,  ch.  77,  §  51. 

6  Pierce  v.   Carleton.  12    III.    364; 
Dawson  v.   Holcomb,   1    Ohio,  275; 


§§  2G0,  2G1.]  PROPERTY    IN    CUSTODIA    LEGIS.  101 

§  260.  It  has  been  held  that  property  assigned  is  ^?^  custodia 
legis  and  therefore  not  attachable  on  the  ground  that  the  as- 
signment was  fraudulent  and  void  ;^  and  this  was  ruled,  though 
the  assignee  had  not  yet  come  into  possession  of  the  property .- 
It  has  been  said  that  the  property  of  an  insolvent,  in  the 
hands  of  a  creditor  "  seeking  to  become  a  preferred  creditor 
by  mortgage,"  is  in  custodia  legis,  so  that  if  it  be  sold  under 
attachment  in  a  suit  against  the  insolvent,  such  creditor  would 
have  his  action  against  the  officer  for  converting  mortgaged 
property.^ 

§  261.  When  attacluiMe. —  The  inviolability  of  property  or 
money  held  by  officers  continues  till  it  is  in  a  condition  to  be 
delivered  or  paid  over.  Then  it  may  be  attached  in  a  suit 
against  the  payee  by  garnishing  the  sheriff  or  officer  in  pos- 
session. If  attached  property  has  been  sold  pendente  lite,  and 
the  attachment  has  been  dissolved  subsequently,  the  proceeds 
may  be  attached  in  the  sheriff's  hands  in  a  suit  against  the  de- 
fendant ;  they  may  be  attached  on  the  same  cause  of  action  as 
before,  it  is  said.''  And  it  has  been  held  that  money  paid  into 
court  to  await  further  order  is  attachable  in  a  suit  against  the 
party  to  whom  it  is  due.^  Not,  however,  while  it  is  awaiting 
judicial  order.  The  plaintiff's  interest  in  a  fund  paid  into 
court  during  litigation  to  await  the  result  of  a  suit  for  dam- 
ages then  pending  against  him  was  held  attachable.^  The 
plaintiff  was  a  non-resident  insolvent. 

Attached  property  ceases  to  be  in  the  custody  of  the  law 

First  u  Miller,  4  Bibb,  311;  Redclick  Wash,   333.     Contra,    Lapp  v.   Van 

V.  Smith,  4   111.   451 ;    Thompson   v.  Norman,  15  Fed.  406. 

Brown,  17  Pick.  462 ;  Clymer  v. Willis,  2  id. ;  Mansfield  v.  First  Nat.  Bank, 

3  Cal.  363 ;  Turner  v.  Fendall,  1  Cr.  5  Wash.  665.     Compare  Benham  v. 

117;    Crane  v.   Freeze,    1   Har.  305;  Ham,  5  id.  128;  Hahn  v.  Salmon,  20 

Prentiss  v.  Bliss,  4  Vt.  513 ;  Jones  v.  Fed.  801 ;  Garreton  v.  Brown,  26  N. 

Jones,  1  Bland,  443 ;  Dubois  v.  Du-  J.  K  425 ;  Van  Keuren  v.  McLaugh- 

bois,  6  Cow.  494 ;  Burrell  v.  Letson,  1  liu,  21  N.  J.  Eq.  163. 

Strobhart,  239;  Conant  v.  Bicknell,  3  straw  v.  Jenks,  6  Dak.  414 ;  Citi- 

1   D.  Chipmau,  50 ;    Farmers'  Bank  zens'  Bank  v.  Jenks,  id. 

V.  Beaston,  7  Gill  &  J.  421 ;  Blair  v.  i  Roddy  v.  Erwin,  31  S.  C.  36. 

Cantey,  2  Speers,  34;  McKinney  v.  5  Trotter  v.  Lehigh,  etc.  Co.,  41  N. 

Purcell,  28  Kan.  446.  J.  L.  227. 

1  Hamilton  Shoe  Co.  v.  Adams,  5  ^  Trotter  v.  Zinc  and  Iron  Co.,  42 

N.  J.  Eq.  456. 


192  LIABILITY    TO    ATTACHMENT.  [§  2G2. 

when  it  has  been  bonded  to  try  title.^  But  when  replevied 
from  an  attaching  officer,  it  continues  to  be  in  such  custody 
while  the  replevin  suit  is  pending-.-  But  if  attachment  and 
replevin  suits  are  coUusively  brought  to  put  property  out  of 
the  reach  of  creditors,  it  is  not  in  custody  of  the  law  and  may 
be  attached  by  other  creditors.* 

Y.  Pkoperty  Assigned,'* 

§  262.  Precluding  subsequent  attacliment. —  A  federal  court 
has  held  that  assigned  property  is  not  in  custodia  legis  and  is 
liable  to  attachment  in  the  hand  of  the  assignee;  that  is,  liable 
when  the  assignment  has  been  made  voluntarily  by  the  debtor.* 
But  an  assignment  in  good  faith  for  the  benefit  of  creditors, 
made  according  to  law,  precludes  subsequent  attachment." 
It  is  said  that  property  assigned  cannot  be  attached  even  for 
the  purchase-price ;  ^  but  the  vendor's  lien  cannot  be  dislodged. 
Nor  can  the  builder's  lien.^ 

When  the  assignee  has  sold  the  property  pursuant  to  the 
surrender,  the  proceeds  are  not  attachable  in  his  hands  by 
one  of  the  creditors;^  not  even  on  the  ground  that  the  in- 
solvent assignee  has  been  found  guilty  of  fraud,  so  that  his 
property  is  as  though  never  surrendered ;  for  the  conviction 
of  fraud  does  not  vitiate  the  cession  to  creditors  who  have 
accepted.^^  But  if  the  appointment  of  a  receiver  to  take  cus- 
tody of  a  debtor's  propert}'-  is  void,  the  property  may  be  at- 
tached in  his  hands."  Yet  a  writ  of  prohibition,  to  prevent 
the  receiver  from  taking  possession,  will  not  be  granted  on 
the  ground  that  the  applicant  desires  to  attach.^- 

iFrieberg  v.  Elliott,  64  Tex.  367,  Gumble  v.  Andrus  (La.  Ann.),  13  So. 

2  First  N.  Bank  v.  Gerson,  50  Kan.  633;  Wells  v.  Lamb,  18  Neb.  352; 
582,  589,  Blakely  v.  Smith  (Ky.),  26  S.  W,  584. 

3  Id,  '^  Boltz  V.  Eagon,  supra. 

*See  §§  413-427,  840-847.  8  Abbott  v.  Davidson  (R  L),  25  A. 

5  Lapp  V.  Van    Norman,   19   Fed.    839. 

406,    After  a  receiver  is  appointed  9  McAllaster  v.   Bailey,   14  N.   Y. 

the  property  cannot  be  attached  in  Civ.  -Proc.  Rep.  401. 

his  hands.     Regenstein  v.  Pearlstein,  1"^  Gumble  v.    Andrus,   supra;    La, 

30S.  C.  192;  Clinkscales  u.  Manuf ac-  Civ.   Code,  arts.  2170.  2175;  Hamil- 

turing  Co.,  9  id.  318.  ton  Shoe  Co.  v.  Adams,  5  Wash.  333. 

6  Boltz  V.  Eagon,  34  Fed,  521 ;  n  State  ex  rel  v.  Court  (Wash.),  34 
Mitchell  V.  Dalton,  44  La.  Ann.  823 :  P.  430. 

Bean  v.  Patterson,  4  McCrary,  179;       ^'^Id. 


§  203.]  PKOPERTY    ASSIGNED.  193 

It  is  not  a  conclusive  sio:n  of  fraud  that  a  buildino:  con- 
tractor  receives  payment  as  it  falls  due,  from  time  to  time, 
after  he  has  assigned  his  right,^  though  it  is  a  suspicious  cir- 
cumstance when  he  is  indebted.  The  rule  is  that  no  interest 
be  retained.  The  assignment  of  partnership  property  by  a 
firm  does  not  preclude  a  creditor  from  attaching,  if  a  part  of 
the  property  was  retained  by  the  firm,  and  the  attaching  cred- 
itor did  not  accept  the  assignment.^ 

§  263.  Sale  treated  as  assignment —  A  sale,  attacked  as 
fraudulent  on  the  ground  that  it  transferred  all  the  debtor's 
property  and  therefore  ought  to  be  treated  as  a  general  as- 
signment for  the  benefit  of  all  creditors,  was  held  to  give  no 
ground  to  the  complaining  creditor  for  attaching  the  property 
in  the  hands  of  the  transferee.^  A  sale,  fraudulent  on  the 
part  of  the  vendor  as  to  his  creditors,  may  convej^  title  to  the 
vendee,  so  that  the  price  —  not  the  property  —  would  be  at- 
tachable.'* 

Fraudulent  assignment  will  not  prevent  subsequent  attach- 
ment, as  a  general  rule.^  What  constitutes  such  an  assign- 
ment is  usually  discernible  from  the  act  itself  or  attendant 
facts.  Preference  to  certain  creditors  over  others  is  a  fraud 
in  some  states ;  and  in  others  (as  Wisconsin)  where  preference 
is  allowed,^  it  may  yet  be  done  fraudulently;  as  when  a  firm 
assigns  with  preference  to  a  member  of  it  as  creditor  of  the 
firm.'^  Preference  made  by  a  non  resident  is  a  ground  for  at- 
taching in  some  states  (as  in  South  Carolina).^ 

1  Abbott  V.  Davidson  (R.  I.),  25  A.  5  Globe  Woolen  Co.  v.  Carhart,  67 

839.  How.  Pr.  403. 

-  Kennedy  v.  McKee,  142  U.  S.  606 ;  6  Hosea  v.  McClure,  42  Kan.  403 ; 

Harrisv.  Russell,  93  Ala.  59;  Solomon  Gore  v.  Rav,  73  Mich.  385;  Britton 

V.  Smith,  16  Golo.  293.  v.  Boyer,  27  Neb.  522. 

3  Avery  v.  Perry  Stove  Co.  (Ala.),  ''Keith  v.  Armstrong,  65  Wis.  228; 

11  So.  417;    Hatchett  v.  Blauton,  72  Vernon  r..  Upson,  60  id.  418;    Wil- 

Ala.  423;  Espy  t\  Comer,  80  id.  333.  lis  v.    Bremner,   id.   622;    David    v. 

As  to  preference  among  creditors  by  Birchard,   53   id.  492 ;   McLinden  v. 

mortgaging  while  insolvent,  see  the  Wentworth,  51  id.  170;  Cotzhausen 

learned  opinions  in  the  case  of  Jaf-  u  Judd,  43  id.  213;  Viles  v.  Bangs, 

fray  v.  Wolfe  (Ok.),  33  P.  945.  36   id.    131.     Debtors   may   instigate 

*  Dicken  v.  Hays  (Pa.   St.),  7  A.  58.  attachment  proceedings,  in  Wiscon- 

Compare  Burke  v.  Johnson.  37  Kau.  sin,  against  their  own  property  for 

337.  the  benefit  of  creditors  —  preferring 

8  National  Bank  v.  Stelling,  32  S.  C.  102. 
13 


194:  LIABILITY    TO    ATTACHMENT.  [§§  2G-1-,  205. 

"  The  distinctive  test  between  an  assignment  and  a  sale, 
where  another  creditor  is  to  be  paid  off,  is  that  in  the  former 
case  such  other  creditor  is  to  receive  some  of  the  property  or 
its  proceeds,  and  in  the  latter  the  creditor  to  whom  title  is 
passed  takes  for  himself  the  whole  property,  stipulating  to  pay 
the  other  creditors  out  of  his  own  means,  and  not  out  of  the 
property  or  its  proceeds."  ^ 

§  264.  As  an  attaching  creditor  has  no  greater  right  to  the 
property  attached  than  his  debtor  has,  he  cannot  successfully 
claim  a  fund  assigned  by  the  latter  on  the  ground  that  the 
holder  of  the  fund  had  no  notice  of  the  assignment  before  the 
levy  of  the  attachment.-  When  the  debtor  has  assigned  a 
judgment,  so  that  he  no  longer  has  any  property  in  it,  his 
creditor  cannot  attach  it.' 

If  an  attaching  creditor  presents  his  claim  to  the  defend- 
ant's assignee  for  allowance,  without  reserving  his  attachment 
rifiht,  he  abandons  his  lien.^ 

An  attachment  was  held  to  be  dissolved  by  the  defendant's 
surrender  as  an  insolvent  on  the  day  of  the  attachment  and  a 
judicial  order  to  stay  proceedings.^ 

§  265.  Property  of  non-residents. —  In  some  states  a  differ- 
ence is  recognized  between  the  property  of  a  resident  and  a 
non-resident  debtor  with  reference  to  the  effect  of  an  assign- 
ment upon  a  previous  attachment.*' 

In  Penns^^lvania  a  recorded  assignment  to  creditors  by  a 
non-resident  debtor  ranks  above  a  subsequent  judgment 
against  him  in  attachment,  in  favor  of  another  non-resident.' 
By  such  assignment  the  title  to  the  property  passes.^ 

certain  creditors  in  this  way.     First  J.,  and  cases  cited  by  him) ;  Stoller 

N.  Bank  v.   Greenwood,  79  id.  269;  v.  Coates,  88  Mo.  515;  Gutzwiller  v. 

Landaner  v.  Yietor,  69  id.  434.  Lackman,   23   id.    174 ;    Harrison   v. 

1  Johnson  v.  Adams  (Ga.),  17  S.  E.  Mock,  10  Ala.  185;  Jones  v.  Tiltou 
898.  The  court  adds :  "  The  distinc-  (Mass.),  1  N.  E.  741 ;  Hone  v.  Heu- 
tion  reconciles  the  present  case  with  rique,  13  Wend.  240;  Frierson  r. 
Powell  V.  Kelly,  82  Ga.  1."    And  see  Branch,  30  Ark.  443. 

Stillwell  r.  Grocery  Co.,  88  id.  141 ;        a  Cerf  v.  Oaks,  59  Cal.  132. 

Kiser  i'.  Dannenbei-g,  id.  541.  ^  First  N.  Bank  v.  Lumber  Co.,  91 

2  Long  Branch,  etc.  v.  Davenport    Tenn.  12. 

(N.  J.  Eq.),  24  A.  922.  •  Wing  r.  Bradner  (Pa.),  29  A.  291 ; 

3  Knapp  V.  Standley,  45  Mo.  App.  Purd.  Dig.,  p.  828 ;  Bacon  v.  Home, 
264.  ,  123  Pa.  St  452. 

*  Drew  Glass  Co.  t\  Baldwin,  27  *  Wing  v.  Bradner,  supra;  Loug  v. 
Mo.  App.  44  (see  dissent  by  Ellison,    Girdwood,  150  Pa.  St  413 ;  post,  §  266. 


^1  2G6,  267.]  PROPERTY    CONSIGNED.  195 

Assignment  by  the  debtor  to  his  creditors  does  not  incapaci- 
tate him  from  traversing  an  affidavit  against  him.^ 

The  assignee  of  a  firm  was  held  not  liable  for  not  dismiss- 
ing an  attachment  case  which  had  been  instituted  by  the  firm 
and  which  was  alleged  to  have  been  settled,  as  he  had  shown 
diligence  to  ascertain  the  truth  of  the  allegation.^ 

§266.  Foreign  assignment. —  Comity  does  not  require  a 
state  to  respect  a  foreign  assignment  repugnant  to  its  own 
laws;  that  is,  if  the  assigned  property  is  found  within  the 
state,  it  may  be  attached  notwithstanding  such  assignment  in 
another  state.  For  instance:  Creditors  in  Xew  York  can  at- 
tach property  found  therein  belonging  to  a  debtor  who  has 
made  such  an  assignment  in  another  state  as  is  inhibited  by 
the  laws  of  Xew  York  if  made  in  Xew  York.^  The  principle 
is  recognized  and  enforced  in  other  states.* 

YI.   Property  Consigned. 

§  26T.  Carrier'' s  possession. —  Goods  sold  but  not  paid  for, 
consigned  by  the  vendor  to  the  vendee,  are  not  attachable  as 
the  property  of  a  consignee  before  either  actual  or  construct- 
ive delivery.'^  The  right  of  stoppage  in  transitu,  before  the 
goods  come  into  the  possession  of  a  purchaser  who  has  become 

1  Keith  t\  Armstrong,  65  Wis.  225.  v.    Geyer,    13   Mass.    146;    Tipsey  v. 

Compare  Howitt  v.  Blodgett,  61  id.  Thompson,  1  Gray,  243 ;  Boston  Iron 

376.      See  Curtis  v.   Wortsman,   26  Co.   v.   Boston   Works,  51   Me.  585; 

Fed.  36,  and  Foster  v.  Higginbotham,  Upton  v.  Hubbard,  28  Ct.  274 ;  Bierne 

49  Ga.  264,  as  to  traverse  by  a  claim-  v.    Paton,    17    La.    590 ;     Tatum    v. 

ant  after  judgment  against  the  de-  Wright,  7  La.  Ann.  358 ;  Chewing  v. 

fendant.  Johnson,  5  id.  678;  Harper  i\  Stans- 

-  Gurley  v.  Tompkins,  17  Colo.  437.  brough,   2    id.    337 ;     Richardson    v. 

3  Barth  v.  Backus  (N.  Y.),  35  N.  E.  Leavitt,  1  id.  430 ;  Fellows  v.  Com- 
425 ;  Waite,  In  re,  99  N.  Y.  433 ;  Kelly  mereial  Bank,  6  Rob.  (La.)  247 ;  Saul 
V.  Crapo.  45  id.  87 ;  Willets  v.  v.  His  Creditoi's.  5  Martin,  N.  S.  (La.) 
vVaite,  25  id.  577 ;  Johnson  v.  Hunt,  569 ;  Oliver  r.  Towns,  2  id.  93.  See 
23  Wend.  87 ;  Holmes  v.  Remson,  20  g  265. 

Johns,  229.     See  Ockerman  v.  Cross,        ^  Morris  t'.  Shryock,  50  Miss.  590 ; 

54  N.  Y.  29.  Allyn  v.  Willis,  65  Tex.  65 ;  Kittridge 

4  May  V.  Bank,  122  111.  551;  Hen-  v.  Sumner,  11  Pick.  50;  Holly  v. 
derson  v.  Schaas,  35  111.  App.  157 ;  Huggeford,  8  id.  73 ;  Buckley  r.  Fur- 
Rhawn  v.  Pearce,  110  111.  350;  Ha5'er  niss,  15  Wend.  137;  Schwabacher  v. 
V.  Alexander,  108   id.  335 ;  McClure  Kane,  13  Mo.  App.^  126. 

V.  Campbell,  71  Wis.  350 ;  Ingraham 


19G  LIABILITY    TO    ATTACHMENT.  [§§  268,   2G9. 

bankrupt  or  embarrassed  in  business,  remains  in  the  vendor 
after  the  consignment.  It  is  not  necessary  to  the  existence 
of  this  riofht  that  the  vendee  should  have  made  a  surrender 
in  court  as  an  insolvent ;  it  is  sufficient  if  he  is  unable  to  pay 
his  debts.  The  consignor  may  countermand  delivery  and  re- 
sume possession  for  the  reason  that  the  other  contracting 
party  is  unable  to  perform,  and  he  would  be  bereft  of  both 
the  goods  and  their  price  were  he  not  allowed  to  regain  the 
former. 

Though  the  carrier's  possession  is  ordinarily  that  of  the  con- 
signee, yet  it  is  not  actual  custody  by  the  latter,  and  it  does 
not  take  away  the  consignor's  right  of  stoppage  in  transitu. 
Though  the  case  would  be  different  were  the  goods  shipped 
in  payment  to  the  consignee,  so  that  the  consignor  could  have 
no  further  claim  upon  them,  yet,  in  the  case  above  suggested, 
the  goods  are  not  attachable  as  the  property  of  the  consignee 
before  delivery  to  him  by  the  carrier,  and  trover  will  lie 
against  an  attaching  officer  as  a  trespasser  who  seizes  them  as 
such.^ 

§  268.  Carrier's  lien. —  If,  notwithstanding  the  existence  of  a 
lien  upon  goods  (such  as  that  of  a  carrier  for  freight,  with  the 
right  of  possession  till  the  lien  shall  be  removed),  an  officer 
attach  them,  the  levy  may  be  legal  upon  the  condition  that 
the  attachment  is  to  be  dissolved  and  the  goods  restored  to 
the  carrier  or  other  lawful  custodian,  if  the  freight  or  lien 
debt  is  not  paid  within  some  fixed  time.  The  officer  cannot, 
if  sued  for  trespass,  set  up  the  invalidity  of  the  attachment 
by  reason  of  such  lien.^  The  common  carrier  is  entitled  to 
freight  and  other  lawful  charges  before  goods  in  tj'ansitu  can 
be  legall}^  seized  and  taken  from  his  possession  in  a  suit 
ao-ainst  their  owner.*  If  the  attachment  of  such  goods  were 
authorized  by  statute,  the  carrier's  lien  would  still  rest  upon 
them,  and  the  creditor's  right  would  be  subordinate 

§  269.  Preliminaries  to  delivery. —  Though  there  may  be  no 
difficulty  about  payment  upon  delivery,  yet  if,  by  the  terms 
of  the  contract,  goods  must  be  weighed,  measured,  selected, 
etc.,  before  delivery,  the  sale  is  not  complete  before  the  pre- 

1  Inslee  v.  Lane,  57  N.  H.  454,  and        2  Stearns  v.  Dean,  129  Mass.  139. 
cases  cited  therein.  3\Volfe  v.  Crawford,  54  Miss.  514. 


^  270.]  PKOPERTY    CONSIGNED.  197 

liminaries  are  observed;  and,  until  delivery,  they  are,  of 
course,  attachable  as  the  property  of  the  vendor  and  not  as 
that  of  the  vendee.^  If,  however,  the  contract  is  complete, 
and  the  goods  are  in  process  of  delivery  b}?"  the  vendor  as 
agent  of  the  vendee,  and  the  ownership  has  really  changed 
from  the  former  to  the  latter,  they  are  not  attachable  as  the 
property  of  the  vendor.'  When  the  property  sold  is  not  actu- 
ally delivered,  but  a  bill  of  sale  is  given  to  the  purchaser,  for 
a  valid  consideration,  the  title  does  not  thus  pass  so  as  to  pre- 
vent the  attachment  of  the  property  in  a  suit  against  the 
seller.^  The  sale  would  be  good  between  the  contracting  par- 
ties; but  without  delivery  it  is  not  so  as  against  an  attaching 
creditor  of  the  vendor.  If,  under  such  circumstances,  the 
purchaser  should  perform  some  act  of  ownership,  or  the  seller 
should  agree  to  keep  the  property  for  the  purchaser,  as  his 
agent,  the  transfer  would  be  complete.*  If  the  property  sold 
is  in  the  custody  of  a  third  person,  and  notice  of  the  sale  is 
given  to  him,  and  he  continues  the  custody  as  the  agent  of 
the  purchaser,  the  transfer  would  be  complete.'^ 

§270.  Property  delivered  hut  not  iKiid  for. —  The  vendee 
who  has  had  goods  delivered  to  him  which  he  has  bought  in 
good  faith  but  has  not  paid  for  will  be  presumed  the  owner, 
so  that  an  attaching  creditor  may  seize  them ;  and  should  the 
vendors  attempt  to  regain  them,  they  must  allege  and  prove 
fraud  on  the  part  of  the  purchaser.^     But  they  cannot  attach 

1  Smart  v.  Batchelder,  57  N.  H.  141 ;  in  a  suit  against  the  vendor.  Russell 
Prescott  V.  Locke,  51  id.  94 ;  Jenuess  v.  O'Brien,  127  Mass.  349. 
V.  Wendell,  id.  63 ;  Messuer  v.  Wood-  ^  Derapsey  v.  Gardner,  127  Mass- 
man,  22  id.  172 ;  Warren  v.  Buck-  381 ;  Carter  v.  Willard,  19  Pick.  1 ; 
minster,  24  id.  336 ;  Foster  v.  Ropes,  Shumway  v.  Rutter,  7  id.  56 ;  Pack- 
111  Mass.  10;  Riddle  v.  Varnum,  20  ord  v.  Wood,  4  Gray,  307;  Rourke 
Pick.  280;  Rugg  v.  Minett,  11  East,  v.  Bullens,  8  id.  549;  Veazie  v.  Soni- 
210 ;  Wallace  v.  Breeds,  13  East,  522.  erby,  5  Allen,  280. 

-'Hobbs    V.    Carr,    127    Mass.  532;  4  ingalls  u  Herrick,  108  Mass.  351 ; 

Leonard    v.    Davis,    1    Black,    476 ;  CJjapraan  v.  Searle,  3  Pick.  38. 

Macomber  v.   Parker,  13  Pick.  175;  ^Tuxworth  v.  Moore,  9  Pick.  847; 

Legg  V.  Willard,  17  id.  140 ;  Riddle  BuUard  v.  Wait,  16  Gray,  55 ;  Thorn- 

V.  Varnum,   20   id.    280;    Stinson  v.  dike  v.  Bath,  114  Mass.  116;  Russell 

Clark.  6  Allen,  340;  Ingalls  v.  Her-  v.  O'Brien,  127  id.  349. 

rick,  108  Mass.  351.     What  will  con-  ^Am.  Ex.  Co.  u    Smith,  57  Iowa, 

stitute  a  symbolic  delivery  so  as  to  242.     See  Devoe  v.  Brandt,  53  N.  Y. 

perfect  the  title  of  the  vendee  and  462;  Scramragel  v.  Whitehurst(Ala.), 

render  it  good  against  an  attachment  15  So.  611. 


lt)8  LIARILITY    TO    ATTACHMENT.  [§  271. 

and  3^et  claim  to  own  the  goods.  Even  if  the  purchaser  has 
bought  them  with  the  intention  of  not  paying  for  them  but 
making  an  assignment  thereof  in  favor  of  preferred  creditors 
who  are  not  the  vendors,  the  latter  cannot  attach  the  goods 
as  the  property  of  the  purchaser,  and  at  the  same  time  set  up 
that  the  sale  was  void  because  of  fraud.  They  could  disclaim 
the  sale  and  recover  the  goods;  but  they  could  not  employ 
both  remedies.^ 

When  goods  have  been  sold  conditionally,  with  the  title  re- 
maining in  the  vendor  till  resale  by  the  purchaser,  they  are 
not  attachable  as  the  property  of  the  purchaser,  though  his 
creditors  have  had  no  notice  of  the  condition.^  When  the  de- 
fendant debtor  is  not  entitled  to  possession,  but  has  an  inter- 
est in  property,  the  interest  may  be  attached,  but  not  the 
property  itself.*  It  has  been  held  that  the  vendor  of  goods 
may  stop  them  in  transitu  even  after  they  have  been  attached 
as  the  property  of  the  vendee;  that  the  vendor  has  a  right  to 
the  proceeds  even  if  the  goods  have  been  sold  in  the  attach- 
ment suit.* 

§  271.  Property  consif/ned  in  payment. —  The  consignor  who 
ships  goods  to  his  creditor  in  payment  parts  with  his  owner- 
ship when  he  delivers  them  to  the  carrier;  the  possession  by 
the  latter  is  that  of  the  consignee,  and  the  goods  are  not  at- 
tachable as  the  property  of  the  consignor,  even  though  he  has 
retained  a  bill  of  lading.^  Though  such  evidence  of  owner- 
ship is  like  commercial  paper,  transferable  by  delivery;  and 
though  ordinarily  a  shipper  who  retains  the  bill  of  lading  in 
his  hands  has  control  of  the  goods  shipped  so  as  to  be  able  to 
put  them  into  the  legal  possession  of  any  one  by  giving  him, 
or  sending  to  him,  such  evidence  of  ownership,  yet  when  the 

1  O'Donald  u.  Constant,  82  Ind.  212.  ner,  77  Tex.  311.     Ore  delivered   to 

2  Thornton  v.  Cook,  97  Ala.  630 ;  merchants  is  not  attachable  as  prop- 
Buford  V.  Shannon,  95  id.  205 ;  Ull-  erty  of  the  mine-owners  who  claim 
man  v.  Myrick,  93  id.  532.  no  right  to  it     Finding  v.  Hartman, 

3  Coulson  V.  Bank,  54  Fed.  855,  dis-  14  Colo.  596. 

anguishing  Brown  v.  Bacon,  63  Tex.  *  Calahan  v.  Babcock,  21  Ohio  St. 

597,    and    Clagett    v.    Kilbourne,    1  281 ;  Kelly  v.  Deming,   5   Fed.  697 ; 

Black,  346.     Horses  sold  and  left  in  O'Brien  v.  Norris,  16  Md.  122 ;  Dick- 

a  livery-stable,   without    actual   de-  man  v.  Williams,  50  Miss.  500. 

livery,  belong  to  the  purchaser  if  put  ^  Straus  v.  Wessel,  30  Ohio  St  211, 
under  his  control.     Floege  v.  Wied- 


§  272.]  CHOSES   IN   ACTION.  199 

goods  have  been  consigned  to  pay  debt,  as  above  stated,  the 
consignor  retains  no  ownership;  and  the  bill  of  lading,  by 
being  subsequently  transferred  to  another,  would  not  convey 
the  goods.  The  bill  differs  from  commercial  paper  in  an  im- 
portant feature.  It  cannot  convey  a  better  title  than  the 
consignor  possesses  at  the  time  he  transfers  it  as  a  symbolic 
deliver}''  of  the  property,  while  commercial  paper  passes  from 
hand  to  hand  leaving  no  question  as  to  the  right  of  the  trans- 
fer.i 

YII.  Choses  in  Action.^ 

§  272.  Evidences  of  deht. —  A  mere  paper  evidencing  debt, 
such  as  a  promissory  note,  in  the  hands  of  a  third  person  for 
the  purpose  of  enabling  him  to  collect  mone}'  due  the  owner 
of  such  paper,  is  not  susceptible  of  being  proceeded  against  as 
the  res  in  an  attachment  suit;  for,  though  it  belongs  to  the 
attachment  defenda^nt,  it  is  not  the  debt  of  which  it  gives  evi- 
dence, nor  is  it  propert}''  beyond  the  value  of  the  mere  fabric. 
The  third  person  having  the  note  in  his  possession,  to  collect 
it  for  the  defendant,  is  not  therefore  the  debtor  of  the  defend- 
ant. The  fact  that  he  will  be  the  possessor  of  money  when 
he  shall  have  collected  the  note  does  not  alter  the  case,  for  to 
be  garnishable  he  must  owe  money  or  hold  liable  property  at 
the  time  of  the  service  upon  him.^ 

1  Emery's  Sons  v.  Irviug  National  16  id.  341;  Andrews  v.  Ludlow,  5 
Bank,  25  Ohio  St.  368  (Benj.  on  Sales,  Pick.  28;  Francis  v.  Nash,  Hardw. 
§86-4).  03;  Staple  v.  Bird,  Barnes,  214;  Mc- 

2  i-g  380-386.  Carthy  v.  Goold,  1  Ball  &  B.   387; 

3  Jackson  v.  Willard,  4  Johns.  41 ;  Padfield  v.  Brine,  3  id.  294 ;  Knight 
Denton  v.  Livingston,  9  id.  96 ;  Handy  v.  Griddle,  9  East,  48 ;  Stewart  v.  Mar- 
V.  Dobbin,  12  id.  220;  Mann  v.  Ex'rs  quis  of  Bute,  11  Ves.  657;  Fitch  v. 
of  Mann,  1  Johns.  Ch.  231 ;  Fletcher  White,  5  Ct.  117 :  Grosvenor  v. 
V.  Fletcher,  7  N.  H.  452 ;  Spencer  v.  Bank,  13  id.  104 ;  Bowker  v.  Hill,  60 
Blaisdell,  4  id.  198 ;  Howland  v.  Me.  172  ;  Skowhegan  Bank  v.  Farrar, 
Spencer,  14  id.  580 ;  N.  H.  Ins.  Co.  v.  46  id.  293 ;  Smith  r.  Kennebec,  etc. 
Piatt,  5  id.  193 ;  Stone  v.  Dean,  id.  502 ;  R.  Co.,  45  id.  547  ;  Wilson  v.  Wood, 
Roundlett  v.  Jordan,  3  Greenl.  47 ;  34  id.  123 ;  Clark  v.  Viles,  33  id.  32 ; 
Klinefelter  v.  Blaine.  3  Dana,  468;  Copeland  v.  Weld,  8  id.  411;  Hitch- 
Maine  Ins.  Co.  V.  Weeks,  7  Mass.  438 ;  cock  v.  Egerton,  8  Vt.  202 ;  Van 
Dickinson  v.  Strong.  4  Pick.  57 ;  Lup-  Amee  v.  Jackson,  35  id.  173 ;  Fuller 
ton  r.  Cutter,  8  id.  298 ;  Perry  v.  v.  Jewett,  37  id.  473 ;  Jones  v.  Norris. 
Coates,  9  Mass.  537;  Grant  v.  Shaw,  2  Ala.  526;  Marston  v.  Carr,   16  id. 


200  LIABILITY    TO    ATTACHMENT.  [§  273. 

The  general  principle  above  briefly  enunciated,  and  the  re- 
marks to  follow,  will  be  understood  to  be  inapplicable  where, 
in  any  state,  such  evidences  are  made  attachable  by  statute.^ 
It  is,  however,  held  nowhere  that  the  mere  evidence  of  a  debt 
is  the  debt  itself,  any  more  than  that  the  deed  to  land  is  land 
itself;  and  where  evidences  of  debt  are  made  attachable  by 
statute,  they  are  usually  attached  as  representing  the  debt  or 
facilitating  the  collection  of  it.  AVhen  notes  are  imjyounded 
they  are  merely  held  to  prevent  their  circulation,  transfer  by 
mere  delivery,  etc.,  in  order  to  conserve  the  debt  due  the  de- 
fendant that  it  may  remain  available  to  the  plaintiff  upon  his 
obtaining  judgment.  The  statute,  whatever  it  authorizes, 
however  exceptional  its  authorized  procedure  may  be  to  gen- 
eral practice,  must  be  the  governing  law  in  the  state  where  it 
has  been  enacted ;  and  whatever  it  prescribes  as  to  method 
must  be  followed  there. 

In  Missouri  the  debtor's  accounts  are  impounded  by  the 
attachment  of  his  books  of  account  and  the  notification  to 
him  by  a  receiver  appointed  b}^  the  court.- 

§  273.  A  promissory  note  is  not  included  in  the  term 
"goods;"  it  is  not  a  chose  in  possession,  though,  when  in- 
dorsed in  blank,  such  an  instrument  has  been  sometimes  held 
such,  and  to  be  a  chattel  or  money,  like  a  bank-note.^  But  it 
cannot  affect  the  true  character  of  such  paper  whether  it  is 
indorsed  or  not.  Whether  it  is  so  or  not,  it  is  only  an  indica- 
tion of  an  existing  right  —  not  money,  or  credit,  or  prop- 
erty. The  attachment  defendant  owns  the  paper;  a  third 
person  may  possess  it,  but  the  obligor  of  the  note  is  the  de- 
fendant's debtor  and  the  person  who  ought  to  be  garnished  — ■ 

325 ;    Pierce  v.  Shorter,   50  id.  318 ;  i  See  Somers  v.  Losey,  48  Mich.  294. 

EUison  V.  Tuttle,  26  Tex.  283 ;  Tirrell  2  pieisch  v.  St.  Louis  N.  Bank  of 

V.  Canada,  25  id.  455 ;  Taj'lor  v.  Gill-  Commerce,  45  Mo.  App.  225  ;  Stanton 

ian,  23  id.  508 ;  Price  v.  Brady,  21  id.  v.  Boschert,  104  Mo.  393 ;  Elliott  v. 

614 :  Moore  v.  Pillow,  3  Humph.  448 ;  Bowman,    17    Mo.    App.    693.      See 

Wilson  V.  Albright,  2  G.  Greene,  125 ;  Kreker  v.  Mason,  33  id.  297. 

Deacon  v.  Oliver,  14  How.  610 ;  Rai-  ^  Bradley  v.  Hunt,  5  Gill  &  Johns, 

guel  V.  McConnell,  25   Pa.  St.  362 ;  54 ;  McNeilage  v.  Halloway,  1  B.  & 

Allen  V.  Erie  Bank,  57  id.  129;  Ga-  A.  218;  Brush  v.  Scribuer,  11  Ct.  388 

lena  &  Southern  Wisconsin  R.  R.  Co.  (though  tliese  cases  do  not  decide 

V.  Stahl,  103  111.  67  ;  Mayes  v.  Phillips,  that  such  choses  may  be  seized  and 

60  Miss.  547.  sold  under  execution). 


§  27-J-.]  CHOSES    IN   ACTION.  201 

not  the  attorney  who  holds  the  written  paper  for  the  purpose 
of  collecting  the  amount  acknow^ledged  by  the  note  to  be  due 
the  defendant;  for  promissory  notes,  bonds,  accounts,  etc., 
are  not  choses  in  possession,  or  chattels,  or  goods  or  effects, 
within  the  meaning  of  the  law  of  attachment ;  and  statutes 
are  not  to  be  construed  as  extending  the  meaning  unless 
where  such  interpretation  is  obviously  the  right  one  b}^  the 
terms  of  the  statute.^ 

§274.  Levij  on  notes,  accounts,  etc. —  The  levy  upon  the 
written  evidence  of  a  credit  due  the  defendant,  in  the  form 
of  a  note  of  hand,  found  in  the  possession  of  the  defendant  or 
of  some  bank  or  other  agent  of  his,  instead  of  garnishing  the 
creditor  who  owes  him  the  debt  evidenced  by  the  note,  is  not 
different  in  principle  from  the  attachment  of  book  accounts 
instead  of  o^arnishing  those  who  owe  what  the  accounts  show 
to  be  due  the  defendant.  In  the  latter  case  it  is  held  that 
levy  on  the  account  books  is  not  a  levy  on  the  debts  charged 
therein  due  by  others  to  the  defendant.- 

In  New  York  it  is  held  that  a  note,  bond  or  like  instrument 
must  be  actually  taken  into  the  officer's  possession  in  order 
to  effect  the  attachment  of  it,*  and  that  an  attached  demand 
should  be  collected  by  the  officer  without  awaiting  judgment 
or  an  order  of  court.*  A  draft  held  for  collection  is  attach- 
able in  the  hands  of  an  agent  in  a  suit  against  the  drawer.^ 

While  money  in  a  garnishee's  hands  belonging  to  an  indi- 
vidual member  of  a  partnership  has  been  held  to  render  the 
possessor  garnishable  in  a  suit  against  the  firm,  a  chose  in 
action  so  held  does  not  make  him  liable.^ 

1  Grosvenor  r.  Farmers' &  Median-  Boone  v.  Mcintosh.  62  Miss.  744; 
ics'  Bank,  13  Ct.  104;  Fitch  v.  Waite,  Throop,  etc,  Co.  v.  Smith,  3  How.  Pr. 
5  id.  118,  123;  N.  H.  I.  F.  Co.  v.  Piatt,  (N.  S.)  290 ;  Gibson  v.  Park  Bank,  98 
5  N.  H.  193 ;  Maine  Fire  Ins.  Co.  v.  N.  Y.  180 ;  Anthony  v.  Wood,  96  id. 
Weeks,  7  Mass.  438;  Perry  v.  Coates,  180. 

9  id.  537.  3  Anthony  u  Wood,  96  N.  Y.  180 ; 

2  Lesher  v.  Getman,  30  Minn.  321 ;  Warner  v.  Bank,  44  Hun.  374. 
Feruald  v.  Cliase,  37  Me.  289 ;  Ting-  *  Davidson  v.    Chatham   Bank,  32 
ley  V.  Dolby,  13  Neb.  371 ;  Ide  v.  Har-  Hun,  138. 

wood,  30  Minn.  191 ;  Swart  t'.  Thomas,  &  Naser  v.  First  N.  Bank,  116  N.  Y. 

26  id.  141 ;  Goodbar  v.  Lindsley,  51  492. 

Ark.  380;  Bromer  u  Smith,  17  Wis.  6  pierce  v.   Shorter,   50   Ala.   318; 

410;  State  v.   Eddy,    10  Mont.  311;  Stevens  r.  Perry,  113  Mass.  380. 


202  LIABILITY    TO    ATTACHMENT.  [§  275. 

If  one  creditor  should  attach  a  promissory  note  or  bill 
of  exchange  found  in  the  possession  of  the  debtor,  and  an- 
other should  attach  the  debt  itself  in  the  hands  of  the  third 
person  owing  it  to  the  defendant,  by  the  process  of  garnish- 
ment,^ it  would  plainly  appear  that  the  first  would  have  seized 
only  the  evidence  of  the  indebtedness  while  the  second  would 
have  attached  the  debt.  Which  would  have  created  a  lien? 
Which  would  have  something  susceptible  of  being  proceeded 
against  as  the  res  in  the  ancillary  proceeding?  Certainly  the 
creditor  who  had  garnished  the  obligor  w^ould  be  the  only 
attacher  of  the  credit  due  to  the  defendant.^  The  other,  hav- 
ing merely  the  evidence  of  the  fact  that  the  maker  of  the  note 
owes  the  defendant,  would  have  nothing  attached  which  could 
be  proceeded  against.  In  a  conflict  between  the  rival  cred- 
itors, there  can  be  no  doubt  that  the  one  who  should  garnish 
the  maker  of  the  note  and  attach  the  defendant's  credit  in  the 
garnishee's  hands  would  be  preferred.  Even  if  the  garnish- 
ment should  take  place  subsequently  to  the  seizure  of  the 
paper-evidence,  it  would  hold  good. 

There  would  seem  to  be  no  meaning  in  authorizations  to 
attach  notes,  bills,  etc.,  unless  the  wOrd  "  attach  "  has  the 
limited  meaning  that  evidences  of  debt  may  be  taken  prelim- 
inarily to  a  valid  attachment  of  the  debt  due  the  defendant 
by  the  subsequent  garnishment  of  his  debt. 

§  275.  jEx2)ress  autliorization. —  It  may  be  said  that,  except 
so  far  as  statutes  expressly  authorize  the  taking  of  promissory 
notes,  bonds,^  certificates  of  stock,  accounts,  title  deeds  to 
lands,  book  accounts,  and  other  evidences  of  debt  or  prop- 
erty, such  things  are  not  attachable  on  general  principles,  be- 
cause their  presence  in  court  is  not  the  presence  of  the  debts 
or  property  which  they  evidence  or  indicate."* 

1  Bills  V.  Nat  Park  Bank,  89  N.  Y.  Gillispie,  8  Dana,  67 ;  Hergman  v. 
343.  Dettlebach,  11  How.  Pr.  46;  Brower 

2  Prout  V.  Grout.  72  111.  456.  v.  Smith,  17  Wis.  410 ;  Codington  v. 

3  Providence  &  Stonington  S.  S.  Gilbert,  5  Duer,  72 ;  Ohors  v.  Hill,  3 
Co.  V.  Va.  Fire  &  Marine  Ins.  Co.,  20  McCord,  338 ;  Fernald  v.  Chase,  37 
Blatchf.  C.  C.  405.  Me.  289;  Lesher  v.  Getman,  30  Minn. 

4  Probst  V.  Scott,  31  Ark.  652 ;  321 ;  Matheny  v.  Hughes,  10  Heisk. 
Prout  V.  Grout,  72  111.  456.     See  with  401. 

reference  to  this  subject,  Bradford  v. 


§  275.]  CHOSES    IN    ACTION.  203 

If  the  object  is  to  attach  the  defendant's  right  to  receive 
payment  on  the  promissory  notes,  bonds,  etc.,  which  he  holds, 
and  not  to  proceed  against  his  debtor  by  way  of  garnishment, 
the  attachment  would  be  that  of  an  incorporeal  thing ;  and 
the  taking  of  the  evidences,  in  such  case,  might  be  made  by 
statute  the  legal  method  of  proceeding  against  such  right  or 
interest.  In  other  words,  the  law  may  create  a  hypothetical 
subrogation,  putting  the  attaching  creditor  in  the  shoes  of  the 
original  payee,  and  creating  a  lien  upon  the  debt  due  the  de- 
fendant. It  would  seem  that  only  in  this  way  can  author- 
izations to  attach  such  evidences  be  rendered  practical  and 
available. 

A  wife's  choses  in  action,  before  her  husband  has  reduced^ 
them  to  possession,  have  been  declared  attachable  as  his, 
where  he  has  the  right  to  reduce  them  to  possession  and  sell, 
release  or  assign  them.  This  is  his  right  under  the  common- 
law  rule  which  prevails  unmodified  on  this  subject  in  several 
states,  while  it  has  been  superseded  by  statute  in  others.  The 
general  tendency  is  towards  the  recognition  of  the  wife's  in- 
dividualism. She  retains  her  right  only  by  statutory  author- 
ization. Where  the  husband  may  reduce  her  choses  in  action 
to  his  possession,  his  creditors  may  reach  them  by  proper 
process,  which  ordinaril}'^  would  not  be  the  direct  attachment 
of  notes  or  other  evidences  of  indebtedness,  but  the  garnish- 
ment of  her  debtors  in  the  action  against  him.  The  decisions 
on  the  liability  of  such  choses  will  be  found  to  turn  upon  the 
common-law  rule  or  upon  its  statutory  modifications.^ 

1  Vance  v.   McLaughlin,   8   Gratt.  173;  Shuttlesworth  r.  Noyes,  8  Mass. 

289;   Peacock  v.   Pembroke,   4  Md.  229.    Coinj^are  Probate  Court  u.  Niles, 

280 ;  Hockaday  v.  Sallee,  26  Mo.  219 ;  32  Vt.   775 ;   Wheeler  v.   Moore,   13 

Babb  V.   Elliott,  4  Harr.  (Del.)  466;  N.    H.   478;    Dennison    v.    Nigh,    3 

OtrmmoaNvealth  v.  Manley,  12  Pick.  Watts,  90. 


CHAPTER  YIII. 

ATTACHING. 

I.  In  General g§  276, 277 

II.  Real  Estate,  how  Attached 278-282 

III,  Personalty,  how  Attached 283-291 

IV,  Time  of  Seizing 292-295 

V,  The  Officer's  Duties  and  Liabilities 290-303 

VI,  Wrongful  Levy 304-311 

I,  In  General. 

§  276,  Officer  selecting  lyroperty  for  seizure. —  The  sheriff, 
armed  with  the  writ,  and  commanded  to  attach  something  be- 
longing to  the  defendant  which  is  capable  of  bearing  a  lien 
and  susceptible  of  becoming  the  res  against  which  the  attach- 
ment proceeding  is  directed,  must  now  select  what  he  is  to 
take  into  his  possession.  He  is  obliged  to  make  selection 
when  the  defendant  possesses  and  owns  more  property  than  is 
sufficient  to  constitute  the  res  of  the  suit,  unless  the  writ  is 
directed  against  specific  property,  when  he  can  seize  only  that. 
The  command  of  the  court  in  the  latter  case  is  for  the  attach- 
ment of  the  particular  thing  which  is  described  in  the  affidavit 
and  the  writ :  so  he  has  no  choice  between  that  and  other  i)rop- 
erty  when  about  to  execute  the  attachment.^  Ordinarily  the 
command  is  general  as  to  the  defendant's  property,  and  the 
sheriff  has  no  guide  in  making  his  selection  except  that  afforded 
by  the  law  and  the  instructions  of  the  plaintiff.  He  should 
regard  the  directions  of  the  plaintiff  when  they  are  within  the 
law,  especially  if  he  has  been  secured  by  an  indemnifying  bond. 
He  is  not,  however,  legally  bound  to  do  so  when  the  instruc- 
tions are  obviously  unreasonable,  evidently  intended  to  harass 
the  defendant,  and  likely  to  result  in  a  damage  suit  against  the 
officer,  if  there  is  sufficient  other  property  liable  to  the  attach- 
ment which  ma}'  be  readily  secured  without  any  embarrassing 
results.     Though  protected  from  damage  by  the  bond  of  in- 

1  Reid  V.  Tucker,  56  Ga.  27a 


g§  277,  278.]  REAL    ESTATE,  HOW    ATTACHED.  205 

(leranity,  the  sheriff  is  not,  under  such  circumstances,  obliged 
to  subject  himself  to  the  annoyances  of  personal  litigation. 

§277.  Defendanfs  attitude. —  It  is  not  generally  deemed 
the  duty  of  the  attachment  defendant  to  point  out  property 
to  be  attached,  or  to  give  the  names  of  his  debtors  that  they 
may  be  garnished.^  It  is  rather  a  privilege  than  a  duty,  when 
property  is  about  to  be  seized  in  execution  of  a  judgment,  for 
the  debtor  to  be  allowed  to  designate  what  property  he  would 
prefer  to  have  taken  under  the  writ.  It  is  his  duty  to  pay 
his  debts  and  to  satisfy  the  judgment  against  him,  and  to  fa- 
cilitate the  officer;  but  when  there  is  no  judgment  and  pre- 
sumably no  indebtedness  (since  he  has  put  or  may  put  the 
charge  at  issue),  there  is  no  reason  for  his  pointing  out  prop- 
erty to  be  attached  or  pointing  out  his  own  debtors  to  be 
garnished ;  but  his  consent  to  attachment  does  not  vitiate  it.- 

II.  Real  Estate,  how  Attached. 

§  278.  Land. —  Attachable  property,  owned  and  possessed 
by  the  debtor,  may  be  real  or  personal  or  mixed ;  it  may  be 
tangible  or  incorporeal.  Its  nature  determines  to  a  consider- 
able decree  what  is  neeessarv  to  its  valid  seizure.  Land  is 
not  susceptible  of  manipulation,  and  therefore  it  is  attached 
by  serving  a  copy  of  the  writ  upon  the  tenant  in  possession 
without  disturbing  his  tenancy,  and  then  returning  the  writ 
with  a  statement  of  the  fact  of  levying  indorsed  thereon.' 
Service  of  the  copy  on  the  tenant  is  not  a  universal  require- 
ment.*    The  indorsement  on  the  writ  should  contain  a  cer- 

1  In  Connecticut  it  is  deemed  fraud  ment  may  be  served  upon  it  by  leav- 

on  the  part  of  the  debtor  who  refuses  ing  a  copy  with  any  of  its  agents  or 

to  disclose  such  facts,  giving  rise  to  clerks  in  the  town  where  it  does  busi- 

action  on  the  case  and  attachment  of  ness.     Adams  v.  Willimantic  Linen 

his  body.     Feary  v.  Hotchkiss,  46  Ct.  Co.,  46  Ct.  320. 

266.     If  the  defendant  discloses  the  2  Goodbar  v.  City  N.  Bank,  78  Tex. 

names  of  his  debtors  and  the  amounts  461. 

due,   the  plaintiff's   process  against  3  Hancock  v.   Henderson,  45  Tex. 

them  as  garnishees  is  called  a  factor-  479;  Wood  v.  Weir,  5  B.  Mon.  544; 

izing  process,  and  the  attachment  is  Lyon  v.  Sanford,  5  Ct.  544 ;  Scott  v. 

called  a  foreign  attachment,  whether  Manchester  Print  Works,  44  N.  H. 

the  defendant  is  within  the  state  or  507. 

a  non-resident.     If  a  corporation  does  *  Rogers  t\  Bonner,  45  N.  Y.  379 ; 

business  in  one  town  and  is  located  Same,  55  Barb.  9. 
in  another,  process  of  foreign  attach- 


2UG  ATTACHING.  [§  279. 

tain  description  of  the  real  estate  attached.^  If  the  descrip- 
tion is  certain  it  need  not  be  an  accurate  detail  of  the  metes 
and  bounds  with  such  particularity  as  would  be  required  in  a 
title  deed,  or  even  in  a  writ  of  execution.-  But  if  the  descrip- 
tion is  ambiguous  or  otherwise  uncertain  there  is  no  valid  at- 
tachment by  notice  to  the  tenant  in  possession  coupled  with 
such  a  return.* 

§  279.  If  the  sheriff  notifies  the  tenant  in  possession  and  so 
returns  what  real  estate  he  has  attached  that  it  may  be  made 
the  object  of  the  ancillary  action  and  the  bearer  of  a  lien  se- 
curing the  creditor's  claim,  it  is  not  necessary  to  show  in  the 
return  that  he  has  been  personally  upon  the  land,  or  that  he 
has  performed  any  act  or  ceremony  by  way  of  attaching  it.* 
The  act  of  attaching  must  be  such  as  to  create  a  lien  upon  the 
land  susceptible  of  being  perfected  by  judgment,  since  that  is 
the  very  object  of  the  process."*  Though  courts  have  fre- 
quently held  that  an  accurate  description  of  real  estate  at- 
tached as  in  a  title  deed  is  not  necessary  to  the  validity  of 
the  attachment  or  the  creation  of  the  lien,  yet  the  better 
practice  is  to  make  such  description  with  the  metes  and  bounds 
and  number  of  acres  stated.  Such  particularity  can  never  do 
harm  and  can  never  giv^e  occasion  for  the  attack  of  the  serv- 
ice as  imperfect  because  of  uncertainty  of  description.  In  a 
contest  among  attaching  creditors,  such  particularity  may 
serve  a  good  purpose.  In  recording  the  attachment  of  land 
an  accurate  description  becomes  necessary.  Considered  as  a 
preliminary  seizure  for  the  purpose  of  eventual  execution, 
there  is  much  reason  for  making  the  description  of  land  at- 

1  Buckhardt  v.  McClellan,  1  Abb.  Hellen,  3  Har.  &  J.  206 ;  Henry  v. 
App.  Dec.  363 ;  Carleton  v.  Ryerson,     Mitchell,  33  Mo.  513. 

59  Me.   438;    Taylor    v.   Mixter,   11  ^Riordan  v.  Britton,  69  Tex.  198; 

Pick.  341.  Sanger  v.  Trammell,  66  id.  361. 

2  Crosby  V.  Ally n,  5  Me.  453 ;  Bacon  ^Yeatman  v.  Savings  Institution, 
V.  Leonard,  4  Pick.  277 ;  Whitaker  v.  95  U.  S.  764,  and  cases  cited  therein 
Sumner,  9  id.  308 ;  Pratt  v.  Wheeler,  at  p.  766  on  liens ;  Saunders  v.  Colum- 
6  Gray,  520;  Howard  v.  Daniels,  3  bus  Life  Ins.  Co.,  43  Miss.  583;  Wor- 
N.  H.  137 ;  Moore  v.  Kidder,  55  id.  cester  Nat.  Bank  v.  Cheeney,  87  111. 
488.  602 ;  Carter  v.  Champion,  8  Ct  549 ; 

3Menley  v.   Zeigler,   23   Tex.    88;  Patch    v.    Wessels,    46    Mich.    249; 

Porter  v.  Byrne,  10  Ind.  146 ;  Hath-  Chandler  v.  Dyer,  37  Vt.  345 ;  Adler 

away  v.  Laribee,  37  Me.  449 ;  Lam-  v.  Roth,  3  McCrary,  445.   The  attach- 

bard  v.  Pike,  33  id.  141 ;  Fitzhugh  v.  ing  creditor  acquire^  a  lien  on  the 


§§  280,  2S1.]  REAL    ESTATE,  HOW    ATTACHED.  207 

tached  as  full  and  accurate  as  its  description  when  it  is  to  be 
sold  under  execution,  though  the  practice  does  not  impera- 
tively require  it.  It  would  not  be  advisable  for  the  sheriff  to 
rely  too  strongly  upon  decisions  sustaining  doubtful  descrip- 
tions when  he  has  it  in  his  power  to  make  a  perfect  return 
free  from  any  invitation  to  attack. 

§  280.  Attachment  of  land  by  such  notice,  description  and 
return  is  presumed  to  be  that  of  the  defendant,  whether  the 
officer  so  states  it  or  not.  The  return  is  an  answer  to  the 
command  to  seize  property  of  the  defendant;  and  the  state- 
ment that  real  estate  of  a  certain  description  has  been  attached 
implies  that  the  order  has  been  obeyed.  The  attachment  is 
therefore  not  radically  defective  when  the  sheriff  fails  to  de- 
scribe the  land  as  belonging  to  the  defendant,^  though  he 
ought  so  to  state.  The  attaching  creditor  cannot  question  the 
defendant's  title  to  the  land  attached.-  When  there  is  no  oc- 
cupant with  whom  the  writ  can  be  left,  posting  is  necessary 
in  California  and  other  states,  and  its  omission  is  fatal.^  It 
must  be  on  each  tract  when  more  than  one  is  attached ;  *  but 
one  posting  is  sufficient  for  several  adjoining  lots.'^  And  it 
must  be  in  a  conspicuous  place,  and  the  return  should  show 
that  fact.^ 

§281.  Interest  in  land. —  When  the  debtor  owns  some  in- 
terest in  land  and  has  the  control  of  such  interest,  it  may  be 
directly  attached  —  notice  being  given  to  him.  Legal  inter- 
ests susceptible  of  bearing  a  lien  are  proper  subjects  of  attach- 
ment. In  California  interests  in  land,  whether  legal  or  equitable, 
perfect  or  imperfect,  and  whether  executory  or  executed  when 
they  lie  in  contract,  are  attachable.^     In  Tennessee  the  right 

land,  but  no  right  to  rents  and  prof-  v.  Wright,  66  id.  202  ;  Porter  v.  Pico, 

its.     Kothman  v.  Marksou,  34  Kan.  55  id.  172;  Sharp  u  Baird,  43  id.  577 ; 

542.  Main  v.  Tappener,  id.  206 ;  White  v. 

1  Miller  v.  Fay,  40  Wis.  633 ;  Por-  O'Bannon,  86  K}'.  93. 

ter  V.  Pico,  55  Cal.  165 ;  Saunders  v.  *  Hall   v.  Stevenson,  19  Oreg.  153 ; 

Columbus  Life  Ins.  Co.,  43  Miss.  583 ;  Henry  v.  Mitchell,  32  Mo.  512. 

King  V.  Bucks,  11  Ala.  217;  Rowan  5  Blake  v.  Rider,  36  Kan.  693. 

V.  Lamb,  4  G.  Greene,  468;  Stoddart  ^jjall  v.  Stevenson,  supra;  Bryan 

V.  McMahon,  35  Tex.  267.  v.  Trout,  90  Pa.  St.  493 ;  Tucker  v. 

2Whitehill  v.  Basnett,  24  W.  Va.  Byars.  46  Miss.  549. 

142.  'Fishr.Fowlie,58Ca].373.  In  Colo- 

3  Davis    V.    Baker,    73    Cal.    494 ;  rado  it  was  held  that  levy  on  land  by 

Schwartz  v.  Cowell,  71  id.  306;  Watt  filing  a  copy  of  the  attachment  with 


208  ATTACHING.  [§  281. 

of  redemption  in  land  sold  under  execution  may  be  attached 
in  a  suit  in  equity  against  a  non-resident  debtor.^  In  Xew 
York  the  interest  of  one  who  ha-s  a  contract  to  purchase,  and 
who  has  made  part  payment,  may  be  attached.-  In  Florida  the 
undivided  interest  of  an  heir  in  land  may  be  attached  during 
administration.'^  In  Illinois  an  equitable  estate  in  land  for  life 
is  attachable.^  In  Tennessee  a  lien  is  not  created  on  an  equi- 
table interest  in  land  from  a  title  bond,  by  levy  of  attachment.* 
These  principles  are  not  limited  to  the  states  mentioned. 
Though  an  interest  in  realt}'-  is  an  incorporeal  thing,  it  may 
nevertheless  constitute  the  res  against  which  the  property- 
action  is  directed.  And  when  such  lien  has  been  created  it  is 
not  lost  by  the  transformation  of  the  incorporeal  to  a  corpo- 
real thing;  as  when  an  undivided  interest  in  real  estate  is 
merged  into  the  part  which  falls  to  the  defendant  upon  parti- 
tion.^ And  this  results  whether  the  partition  is  made  after 
the  attachment  or  is  made  before  without  notice  to  the  attach- 
ing creditor  and  beyond  his  knowledge.  The  defendant  is  not 
put  to  the  worse  by  the  lien  following  the  interest  from  the 
mass  to  a  distinct  apportionment  of  the  property.  If  his 
interest  in  an  undivided  tract  of  land  is  attached,  and  a  divis- 
ion subsequently  is  made  by  which  one-half  of  the  tract  is  set 
off  to  him  as  his  share,  the  lien  will  pass  to  his  portion  and 
leave  the  other  half  free  and  unincumbered. 

It  has  been  held  that  an  execution  levied  upon  the  right, 
title  and  interest  of  a  judgment  debtor  is  a  levy  upon  the  land 
itself  for  all  practical  purposes,  if  the  title  is  wholly  in  him ; 
and  that  a  sale  under  such  levy  would  convey  the  land."    And 

description  in  the  recorder's  office  of  the  mortgagee.  Becker  v.  Dun- 
created  a  lieu  before  service  on  the  ham,  27  Minn.  32. 
defendant.  Raynolds  v.  Eay,  12  Colo.  -  Higgins  v.  McConnell,  130  N.  Y. 
108  (.see  dissent  of  the  chief  justice) ;  482.  See  same  title,  56  Hun,  277 ; 
Emory  v.  Yount,  7  Colo.  107 ;  Brown  N.  Y.  Civ.  Code  of  Proc,  §g  644, 1253. 
V.  Tucker,  id.  30 ;  Moore  v.  Thayer,  6  » McClellan  v.  Solomon,  23  Fla.  437. 
How.  Pr.  (N.  Y.)  43.  Compare  Main  *  Wallace  v.  Monroe,  22  111.  App, 
V.  Tappener,  43  Cal.  206 ;  Wheaton  v.  602. 

Neville,  19  id.  42.  5  Blackburn  v.  Clarke,  1  Pickle,  505. 

1  Herndon  v.  Pickard,  5  Lea,  702.  6  McMechan  v.  Griffing,  9  Pick.  538 ; 

In  Minnesota  the  right  of  the  mort-  Muuroe  v.  Luke.  19  id.  39 ;  Crosby  v. 

gagor  to  redeem   may  be  attached,  Allyn,  5  Me.  453;  Argyle  v.  Dwinel, 

when  the  chattel  is  still  in  the  hands  29  id.  29. 

^  Vilas  r.  Reynolds,  6  Wis.  214 


^§  2S2,  283.]  PERSONALTY,  HOW    ATTACHED. 


209 


if  there  is  a  mortgage  resting  upon  the  land,  and  the  right, 
title  and  interest  of  the  owner  executed  and  sold,  it  has  been 
held  that  the  land  itself  will  be  thus  conveyed,  and  the  mort- 
gagee must  look  to  the  proceeds ;  ^  but  usually  it  is  sold  sub- 
ject to  the  lien. 

§282.  Constructive  attacliment. —  There  can  be  only  con- 
structive attachment  when  some  interest  under  the  control 
of  and  owned  by  the  defendant  is  proceeded  against.  Not 
being  susceptible  of  manipulation,  it  can  be  attached  in  idea 
raerel}^  by  giving  notice  and  returning  that  it  is  attached. 
There  is,  however,  a  legal  transfer  of  control  and  possession 
from  the  defendant  to  the  officer,  if  the  levy  is  valid.  In  the 
eye  of  the  law,  the  latter  takes  possession  of  the  incorporeal 
thing,  brings  it  into  court,  and  holds  it  in  custodia  legis.  The 
owner  of  it  cannot  dispose  of  it  in  any  way  that  will  dis- 
incumber  it  of  the  lien.  Thus  the  interest  of  a  devisee,-  of 
heirs,''  or  of  any  distributee  of  an  estate  attached  in  Iowa  be- 
fore sale  by  an  administrator  to  pay  his  debt  to  the  estate,* 
may  be  constructively  attached.  A  lien  interest  is  not  attach- 
able.^ When  an  undivided  interest  has  been  attached,  a 
claimant  may  proceed  without  other  owners  of  interests  being 
made  parties.®  There  are  many  interests  which  have  been 
held  not  liable  to  attachment :  the  interest  of  the  mortgagee 
in  chattels;^  the  mortgagor's  right  of  redemption,^  etc.  A 
leasehold  interest  cannot  be  included  in  the  attachment  of 
'•goods,  furniture  and  effects"  liable  for  rent.^ 

III.  Personalty,  how  Attached. 

§  283.  Actual  seizure. —  Personal  property  should  be  seized 
in  preference  to  real,  even  when  the  statutes  do  not  impera- 
tively require  such  preference.     It  is  the  species  of  property 

iTrudeau  v.  McVicar,  1  La.  Ann.  6  Hamburg  v.  Wood,  66  Tex.  168. 

426 ;  Duchaud  t\  Rousseau,  2  id.  168,  ^  Murphy  v.   Galloupe,   143    Mass. 

173.  123 ;  Voorhies  v.  Hennessy  (Wash.), 

2  Hewitt  V.  Durant,  78  Mich.  186.  34  P.  931 ;  Silsby  v.  Aldridge,  1  Wash. 
See  Hawkins  v.  Hewitt.  56  Vt.  430.  117.     In  the  state  of  Washington  the 

3  Hankinson  u  Page,  19  Abb.  N.  C.  chattel-mortgagee  in  possession  is 
274.  not  deemed  the  owner. 

4  AUison  V.  Graham,  67  la.  68.  s  Cutter  v.  Gould,  43  Hun,  516. 
5Adoue  V.  Jemison,  65  Tex.  680;        9  First  N.    Bank  v.  Light  Co.,   97 

McGurren  v.  Garrity,  68  Cal.  566.  Ala.  465. 

14 


210  ATTACHING.  [§  284. 

most  readily  taken  into  actual  possession,  and  is  that  which 
is  most  usually  the  subject  of  attachment. 

Goods  and  chattels  are  attached  by  the  actual  taking  of 
them  by  the  sheriff  from  the  possession  of  the  debtor,  and 
transferring  them  to  the  control  of  the  court.^  They  cannot 
ordinarily  be  the  subject  of  constructive  seizure.  Possession 
creates  the  presumption  of  ownership  in  movable  property  ;- 
and  therefore  if  attached  goods  were  left  in  the  hands  of  the 
debtor,  he  might  validly  convey  them  to  an  innocent  pur- 
chaser buying  without  notice  of  the  attachment;  and  then 
the  property  action  would  be  at  an  end  for  want  of  the  thing 
proceeded  against. 

§  284.  Whatever  is  in  its  nature  susceptible  of  being  ma- 
nipulated can  be  validly  attached  only  by  the  taking  of  it 
into  the  charge  and  control  of  the  executive  officer,  acting 
under  the  court.^  Whether  it  is  handled  and  removed  or  not; 
Avhether  it  is  transferred  to  the  officer's  warehouse  or  left  in 
its  original  locality  in  charge  of  a  keeper  appointed  by  the 
officer;  whether  it  is  retained  directly  by  the  officer  or  in- 
trusted b}^  him  to  a  receiptor  or  given  in  charge  to  the  defend- 
ant himself  under  a  forthcoming  bond, —  it  must  be  subjected 
to,  and  continued  under,  the  control  of  the  court  so  as  to  con- 
stitute the  res  of  the  action. 

It  has  been  held  that  levy  upon  a  safe  and  contents  includes 
its  contents  though  the  safe  be  locked.*  Things  not  immedi- 
ately removable  may  be  attached  and  keepers  put  in  charge,  re- 
moval not  being  essential  to  the  attachment  of  such  personalty. '' 

1  Gumbel  v.  Pitkin,  124  U.  S.  131 ;  the  attachment  and  custody  of  av- 
8  S.  Ct  379 ;  Capital   City  Bank  v.    tides  of  bulk. 

Parent,   134  N.  Y.  537;   Hibbard  v.  *  Elliott  v.  Bowman,   17  Mo.  App. 

Zenor,  75  la.  471 ;  Barney  i\  Rock-  693 ;  Sams  v.  Armstrong,  8  id.  573 ; 

well,  60  Vt.  444.  Douglas  v.  Orr,  58  Mo.  573 ;  Newman 

2  Harvey  v.  Jewell,  84  Ga.  234.  v.  Hook.  37  id.  207 ;  Yeldell  v.  Stem- 

3  Root  V.  Railroad  Co.,  45  Ohio  St.  mons,  15  id.  443. 

222;  Hibbard  v.  Zenor,  75  la.  471;  5  Commonwealth  v.  Brighara,  123 

Littleton    v.    Wyman,    69    id.    248 ;  Mass.  248 ;  Cheshire  N.  Bank  v.  Jew- 

Bickler  r.  Kendall.  66  id.  703;  Craw-  ett,  119  id.  241 ;  Dunklee  v.  Fales,  5 

ford  V.  Newell,  23  id.  453 :  Lyeth  v.  N.  H.  527 ;  Bicknell  r.  Trickey,  34  Me. 

Griffis,  44  Kan.   159 ;  Powell  r.  Mc-  273 ;    State  v.   Barker,   26  Vt.    647 ; 

Kechnie,    3    Dak.    319.     See  Went-  Naylor  v.  Dennie,  8  Pick.  198 ;  Pond 

worth  V.  Sawyer,  76  Me.  434,  as  to  v.   Skidmore,   40   Ct   213 ;    Mills   v. 

Camp,  14  id.  219. 


§  2S5.]  PERSONALTY,  HOW    ATTACHED.  211 

§  2S5,  Crop. —  In  seizing  a  growing  crop  the  sheriff  must 
obtain  and  retain  control  of  it,'  give  proper  notice  to  the  per- 
son in  charge  of  it,  make  such  inventory  as  is  practicable,  and 
duly  return  his  action  to  the  court;  but  he  must  not  gather 
the  crop  before  it  is  ripe,  or  prevent  its  cultivation  mean- 
while. It  would  manifestly  be  an  act  of  folly  to  take  posses- 
sion of,  and  remove  for  safe  keeping,  any  species  of  property 
of  such  a  nature  that  it  would  be  destroyed  by  such  action. 
The  object  of  the  legislator  in  providing  the  remedy  of  at- 
tachment is  to  enable  the  creditor  to  make  his  money  out  of 
the  property  of  the  debtor,  not  .to  provoke  the  wanton  de- 
struction of  the  property,  which  would  be  of  no  benefit  to  the 
creditor  while  causing  loss  to  the  debtor  and  diminishing:  his 
ability  to  pay.  If  the  nature  of  the  property  is  such  that  it 
cannot  be  taken  into  the  ph3'sical  possession  of  the  oflBcer 
without  its  destruction,  it  cannot  legally  be  so  taken;  if, 
though  attached,  it  cannot  be  removed  without  such  result, 
it  is  not  legally  removable.  Illustrations  are  found  in  the 
nature  of  growing  crops  in  the  field,  unripe  fruit  in  the  or- 
chard, unformed  vegetables,  fresh  fish  and  meat,  articles 
under  process  of  being  manufactured,  etc.-  Live  stock  and 
household  furniture  have  been  sold  by  order  of  court  in 
limine  as  perishable  property.^  Goods  of  tailors  have  been 
held  perishable  owing  to  change  of  fashions  and  liability  to 
moth  and  dirt.*  Perishable  property  has  been  sold  under 
order  of  court  after  the  plaintiff's  death  while  the  attachment 
case  was  still  pending.-^     If  the  attachment  be  quashed  after 

J^Throop  V.  Maiden  (Kan.),  34  P.  Penhallow  v.  Dwight,  7  Mass.  34; 
801;  Lyeth  v.  Griffis,  44  Kan.  159;  Bond  v.  Ward,  id.  123;  Wilds  v. 
Kan.  Civ.  Code,  §  198:  Crisman  v.  Blanchard,  7  Vt.  138;  AVallace  v. 
Dorsey,  12  Colo.  567.  If  the  crop  is  Barker,  8  id.  440 ;  Norris  v.  Watson, 
grown  by  one  whose  possession  of  2  Fos.  364.  See  First  N.  Bank  v.  Light 
the  land  is  adverse  to  the  defendant,  Co.,  97  Ala.  465.  But  not  baled  cot- 
it  is  not  attachable  as  the  property  of  ton.  Goodman  v.  Moss,  64  Miss.  307 ; 
the  defendant.  Smith  v.  Cunning-  Weis  v.  Basket  (Miss.),  15  So.  659. 
ham,  67  Cal.  262.  An  attacher  of  ^  Baker  v.  Baker  (Pa.  Com.  Pleas), 
land  is  not  entitled  to  an  order  ap-  28  W.  N.  C.  300 ;  Meyer  v.  Sligh,  81 
propriating  the  rents  to  his  claim.  Tex.  336. 

Columbia  Bank  v.  IngersoU,  21  Abb.  ■*  Schumann  v.  Davis,  26  Abb.  N.  C. 

N.  a   241.     See  Phelps  v.  Delmore,  125. 

69  Hun,  18;  ante,  §  146.  sBuller  v.  Woods,  43  Mo.  App.  494. 

^  Raventas  v.  Green,  57   Cal.  254 ; 


212  ATTACHING.  [§§  286-289. 

such  sale,  the  proceeds  must  be  paid  to  the  defendant,  thougli 
the  plaintiff  gain  the  personal  suit.^ 

§  286.  What  constitutes  seizure. —  The  taking  and  holding 
of  any  attachable  property  must  be  such  as  to  maintain  the 
incipient  lien,  to  perfect  it  upon  judgment,  and  eventually  to 
enforce  it  by  sale  of  the  thing  attached.  Since  the  taking  is 
preliminary  to  execution,  it  is  as  important  that  the  property 
should  be  actually  taken  and  held  as  if  the  seizure  were  made 
after  judgment  under  a  writ  of  execution.^ 

§  287.  Actual  manipulation  is  not  always  necessary.  Noth- 
ing is  added  to  the  sanctity  of  a  seizure  by  laying  hands  on  the 
article  attached.  Grain  in  bulk,  ships,  steamboats,  and  any 
cumbrous  property  may  be  left  where  found,  without  any  act 
done  to  the  thing  seized,  provided  the  sheriff  really  takes  it 
in  charge  and  holds  it  directly,  or  indirectly  b}'  his  servants, 
or  by  others  legall}^  authorized  to  hold  under  him.  What  is 
meant  b}^  saying  that  there  must  be  actual  seizure  is  that 
there  must  be  a  real  transfer  of  the  legal  possession  and  con- 
trol from  the  debtor  to  the  sheriff, 

§  288.  A  real  or  actual  attachment  is  not  accomplished  by 
serving  a  copy  of  the  writ  on  the  person  in  charge  of  goods, 
acquainting  him  with  the  character  of  the  paper,  making  an  in- 
ventory of  the  goods  and  returning  the  writ  into  court  with 
a  statement  indorsed  thereon  that  the  goods  have  been  at- 
tached.^ Such  procedure  on  the  part  of  the  officer  might 
subject  him  to  damages  in  a  suit  by  the  defendant  for  wrong- 
ful constructive  seizure  without  amounting  to  a  valid  attach- 
ment.* 

§  289.  Seizing  goods  by  merely  declaring  them  to  be  seized, 
and  posting  notice  of  the  attachment  upon  or  above  the  goods, 
and  making  a  return,  does  not  constitute  a  legal  attachment.* 

1  Petty  V.  Lang,  81  Tex.  238.  See  475.  See  Adams  v.  Speelman,  39 
Stacks  V.  Curd,  88  Ky.  1G4.  Hun,  35. 

2  Patch  t".  Wessels,  46  3Iich.  249;  5  Rix  r.  Silknitter,  57  la.  262 ;  Bry- 
Mahon  v.  Kennedy  (Wis.),  57  N.  W.  ant  v.  Osgood,  52  N.  H.  182.  But  a 
1108;  Bell  v.  Shafer,  58  Wis.  223;  sheriff  made  a  memorandum  of  a 
Wis.  Rev.  Stat.,  g  2736 ;  Adler  v.  Eoth,  portable  threshing  machine  and  its 
2  JMcCrary,  445.  accompaniments,  served   a  copy  of 

3  Miles  V.  Brown,  38  N.  Y.  Super.  Ct,  the  attachment  and  summons  on  the 
400 ;  Bickler  v.  Kendall,  66  la.  703.  defendant,  and  told  a  workman  near 

*St.  George  v.  O'Connell,  110  Mass.     by  to  look  after  the  articles  and  tell 


;   290.]  PEKSONALTT,  HOW    ATTACHED.  213 

Certainly  such  acts  would  not  be  of  avail  in  competition  with. 
a  second  attachment  actually  made  and  the  goods  legally 
retained  by  the  officer  or  by  a  kee|3€r  duly  appointed.  A  seiz- 
ure may  be  good  with  respect  to  the  defendant  yet  not  as  to 
third  persons ;  ^  it  may  have  radical  defects  as  an  attachment, 
yet  hold  good  against  purchasers  from  the  defendant  there- 
after, so  as  to  sustain  the  charge  that  they  bought  with 
knowledge  of  the  attachment. 

Interests  may  be  such  as  to  be  susceptible  of  only  construct- 
ive seizure;  but  the  general  rule  maybe  expressed  in  brief, 
that  the  attachment  of  movable  property  is  its  actual  seizure 
under  the  writ,  and  the  transfer  of  its  possession  and  control 
from  the  defendant  to  the  officer,  who  must  continue  his  legal 
custody  of  it  in  order  to  maintain  the  validity  of  the  attach- 
ment.- 

§  290.  Second  levy. —  When  property  has  already  been  at- 
tached and  is  in  the  lawful  possession  of  the  sheriff,  a  second 
attacher  cannot  take  it  from  him.^  And  tiiere  is  no  need  for 
such  taking,  since  the  property  is  already  safe  in  the  custod}'" 
of  the  law,  and  the  second  attacher  is  fully  protected  in  his 
rights.     An  officer  who  has  attached  property  canuot  give 

auy  iutermeddler  that  they  were  at-  Stockton  v.  Downey,  6  La.  Ann.  581  ; 

tached ;  and  this  seizure  was  held  Woodworth   v.   Lemmerman,   9    id. 

good  as  against  purchasers  from  the  524;    Netson    v.   Simpson,    id.    311; 

defendant  with  knowledge.     Rogers  Gates  v.  Flint,  39  Miss.  365;  Patch  v. 

V.  Gil  more,  51  Cal.  309.  Wessels,   46  Mich.   249 ;   Sanford  v. 

iDriesbachnBank,  113Pa.  St.  554;  Boring,    12    Cal.    539;     Lovejoy    v. 

Throop  V.  Maiden  (Kan.),  34  P.  801.  Hutchins,  23  Me.  272 ;  Waterliouse  v. 

2  Scott  V.  Davis,  26  La.  Ann.  688;  Smith,  22  id.  337;  Nichols  r.  Patten, 
Lane  v.  Jackson,  5  Mass.  157 ;  Gale  v.  18  id.  231 ;  Connell  v.  Scott,  5  Baxter, 
Ward,  14  id.  352 ;  Baldwin  u  Jack-  595 ;  Brooks  v.  State,  id.  607 ;  Culver 
son,  12  id.  131 ;  Ashmun  v.  Williams,  v.  Rumsej',  6  111.  App.  598 ;  same  title, 
8  Pick.  402 ;  Hemmenway  uWheeler,  7  id.  422.     In  Vermont,  however,  the 
14  id.  408;  Sanderson  v.  Edwards,  16  possession,  though  it  must  be  contin- 
id.  144;  Bruce  v.  Holden,  21  id.  187;  uous  as  above  stated,  may  be  con- 
Sutherland  V,   Peoria  Bank,  78  Ky.  structive.      Rogers    v.   Fairfield,   36 
250 ;  Lyon  v.  Rood,  12  Vt.  233 ;  Blake  Vt.  641 ;  Paul  v.  Burton,  32  id.  148 
V.  Hatch,  25  id.  555 ;  Taintor  v.  Will-  Strickland   v.    Martin,    23    id.    484 
iams,  7  Ct.  271 ;  Huntington  v.  Blais-  Bucklin    v.   Crampton,    20    id.   261 
dell,  2  N.  H.  317 ;  Dunklee  v.  Fales,  5  Lyeth  v.  Griffis,  44  Kan.  159. 
id.  527;  Chadbourne  v.   Sumner,  16        3  Benson  v.   Berr}^  55  Earb.   620; 
id.  129 ;  Smith  v.  Orser,  43  Barb.  187 :  Bailey   v.    Childs,    46   Ohio   St.   557 ; 
Learned  v.  Vanderburgh,  7  How.  Pr.  Heye  v.  Moody,  67  Tex.  615. 
379 ;  State  v.  Cornelius,  5  Oreg.  46 ; 


214  ATTACHING.  [§  291. 

another  the  right  of  making  a  second  levy  upon  it.^  The 
right  is  giv^en  by  statute  to  lay  the  second  attachment  in  the 
hands  of  the  officer.- 

§  291.  Stoclcs. —  Corporation  stock  is  attached  by  leaving  a 
copy  of  the  writ  with  the  proper  corporation  officer,^  and  giv- 
ing notice  and  making  return  with  proper  description.  Sim- 
ply taking  possession  of  the  stock  certificate  is  no  attachment 
of  anything  of  value.*  The  corporation  has  no  interest  in  the 
seizure  of  the  stock  as  the  property  of  a  stockholder.*  The 
method  of  seizing  corporation  stock  is  pointed  out  in  differ- 
ent statutes,  and  it  depends  on  the  authorization  for  its  legal- 
ity wherever  it  is  attachable  at  all.^  It  is  not  necessary,  in 
attaching  it,  to  make  mention  of  accruing  or  subsequent  divi- 
dends; the  seizure  covers  them.'' 

Stock  transferred  but  not  entered  on  the  books  as  required 
is  attachable  by  an  unnotified  creditor  in  his  suit  against  the 
transferrer.^  Under  an  order  to  attach  "effects,"  stocks  may 
be  attached ;  the  term  is  more  extensive  than  "  goods."  ^ 

The  defendant's  merely  beneficial  interest  in  corporation 
stock  standing  in  another's  name  is  not  attachable.^"  When 
such  interest  has  been  attached  and  the  attachment  vacated, 
the  trial  judge  cannot  be  compelled  by  mandamus  to  set  aside 
his  vacating  order." 

1  Bailey  v.  Childs,  46  Ohio  St.  557.  Co.,  4  Mackey,  63 ;  Foster  v.  Potter, 

The  second  attacher  should  garnish  37  Mo.  525 ;  Abels  v.  Insurance  Co., 

the  sheriff  in   Ohio    as  to  personal  92  Ala.  382 ;  Haley  v.   Reid,  16  Ga. 

property     already     attached.      Id. ;  437 ;  Union  Bank  v.  Byram,  131  111. 

Locke  V.  Butler.  19  Ohio  St.  587.  92 :  Ehea  v.  Powell,  24  III.  App.  77 ; 

2Claflin  V.   Furstenheim,  49   Ark.  Merchants'  Ins,    Co.    v.   Brower,   38 

302.  Tex,  230;  Howe  v.  Starkweather,  17 

3  Union  N.  Bank  v.  Byram.  131  111,  Mass.  240 ;  Plympton  v.  Bigelow,  13 

92,    See  Rhea  v.  Powell,  24  111.  App.  Abb.  N.  C.  173 ;  Gottfried  v.  Miller, 

77 ;  Foster  v.  Potter,  37  Mo.  526,    But  104  U,  S,  521. 

not  attachable  as  evidence  of  debt,  '^Jacobus  v.   Bank,   35    Fed.    395; 

Van  Norman  v.  Judge,  45  Mich.  204.  Geyer  v.  Insurance  Co.,  3  Pittsb.  41. 

^Duncanson  v.   Bank,  7  Mackej-,  » Fort  Madison,  etc,  r.  Bank,  71  la, 

348 ;  Armour    Bank    Co,    v.    Smith  270 ;  Ryan  v.  Campbell,  id.  760. 

(Mo.),  20  S,  W.  690 ;  Mooar  v.  Walker,  ^  Union  N.  Bank  v.  Byram,  131  111. 

46  la,  164 ;  Stamford  Bank  v.  Ferris,  100. 

17  Ct.  259.  10  Gypsum    Co,    v.    Circuit  Judge, 

5  Gottfried  v.  Miller,  104  U,  S.  521.  97  Mich.  631 ;  Van  Norman  v.  Circuit 

6  Armour  Bank  Co.  v.  Smith  (Mo.),  Judge,  45  id.  204, 
20  S,  W,  690 ;  Barnard  v.   Life  Ins.  "  Id. 


§§  292,  293.]  TIME    OF   SEIZING.  2lD 

TV.  Time  of  Seizing. 

§292.  Hfeofivrit. —  The  writ  has  till  the  return  day  to 
run,  but  it  is  the  duty  of  the  officer  in  charge  of  it  to  serve  it 
on  the  day  he  receives  it,  or  as  soon  as  practicable,  unless  in- 
structed or  permitted  by  the  plaintiff  to  make  delay,  or  un- 
avoidably hindered  in  some  way.  It  is  true  that  in  many 
cases  no  evil  arises  from  a  little  procrastination.  If  the  debtor 
is  honest,  or  the  property  not  portable,  or  there  are  no  com- 
peting creditors,  the  execution  of  the  writ  on  the  last  day  of 
its  term  might  suffice ;  but,  in  such  a  conjunction  of  circum- 
stances, there  is  hardly  any  need  for  such  writ  at  all.  An 
ordinary  suit  might  result  in  judgment  soon  enough ;  and  then 
the  issue  of  an  execution  would  preclude  the  necessity  for  an 
ante-judgment  attachment.^ 

Should  the  plaintiff  suffer  loss  by  the  unnecessary  dallying 
of  an  officer,  he  ought  to  be  recompensed  therefor  in  damages, 
though  the  limit  of  the  time  for  the  return  may  not  have  ar- 
rived. But  the  officer  is  not  bound,  under  ordinary  circum- 
stances, to  proceed  with  any  unusual  degree  of  celerity.  If 
the  writ  is  placed  in  his  hands  late  in  the  day,  he  may  await 
till  the  following  day  before  making  the  levy,  though  it  is 
possible  to  perform  the  duty  immediately.  He  might  not  be 
subjected  to  damages,  under  ordinar}^  circumstances,  should 
he  delay  for  several  days  when  busy  with  other  official  duties, 
if  the  plaintiff  makes  no  request  for  immediate  or  early  action, 
and  if  the  officer  knows  of  no  reason  why  he  should  avoid 
such  delay;  but  in  such  case  he  takes  the  risk  should  the 
plaintiff  suffer  loss  by  the  procrastination.  Delay  in  attach- 
ing is  not  material  if  facts  remain  unchanged.- 

§  293.  Immediate  action.—  When  immediate  action  is  ur- 
gent, and  the  plaintiff  instructs  theofficer  to  execute  the  writ 
immediately  upon  property  which  he  points  out  —  upon  a 
steamboat  just  about  to  leave  the  wharf  for  atrip  beyond  the 
state  lines,  for  instance, —  it  is  the  duty  of  the  officer  to  pro- 
ceed with  such  dispatch  as  is  compatible  with  good  and  se- 
cure work,  notwithstanding  the  many  remaining  days  within 
which  the  writ  is  returnable.     Even  if  the  plaintiff  has  not 

iScheib  v.  Baldwin,  22  How.  Pr.  2  Adams  v.  Lock  wood,  30  Kan.  373. 
278. 


2iG  ATTACHING.  [§§  294,    295. 

urged  such  celerit}^  but  has  pointed  out  the  property  to  be 
seized,  the  oificer  ought  to  move  with  reasonable  dispatch  if 
he  knows,  though  the  plaintiff  does  not,  that  in  case  of  a  few 
hours'  delay  the  object  of  pursuit  would  probably  elude  his 
grasp. 

§  294.  Priority. —  The  time  of  executing  is  not  only  impor- 
tant with  reference  to  the  possible  removal  of  his  property  b}'" 
the  debtor  in  case  of  the  officer's  delay,  but  also  with  regard 
to  priority  of  lien  when  there  are  competing  attachments.  So 
far  as  the  defendant  is  concerned,  the  levy  on  the  last  day  of 
the  writ's  duration  is  just  as  effectual  as  on  the  first;  and, 
even  after  the  expiration  of  the  specified  time,  an  attachment 
may  serve  its  purpose  as  to  him  if  he  should  not  have  it  dis- 
solved prior  to  judgment  and  make  way  with  his  property 
before  judgment  and  seizure  under  execution.^ 

§  295.  Levy  is  too  late  if  made  after  notice  of  insolvency 
proceedings  against  the  debtor  has  been  published,^  although 
the  writ  ma}'  have  several  days  to  run ;  and  it  is  always  too 
late  after  the  return  day,^  if  assailed.  The  officer  ought  not 
to  wait  till  the  time  has  nearly  expired,  but  should  proceed 
with  reasonable  celerity,  even  though  not  specially  urged  by 
the  attaching  creditor,  that  he  may  not  only  have  the  satis- 
faction of  having  promptly  done  his  duty,  but  also  that  he 
may  avoid  personal  liability  in  case  the  intended  seizure  should 
slip  his  fingers;*  for  the  officer  may  render  himself  liable  to 
the  plaintiff  for  loss  caused  by  tardiness  in  moving,  though 
the  writ  may  yet  have  considerable  time  to  run.^  He  is  not 
expected  to  be  on  the  alert  at  unseasonable  hours,  between 
midnight  and  da}',''  unless  speciallv  advised  that  extraordinary 
vigilance  and  energy  are  necessary  to  prevent  the  removal  of 
the  debtor's  property  at  such  hours,  or  for  the  purpose  of  the 
plaintiff's  gaining  priority  of  rank  among  creditors. 

It  was  held,  under  the  xsew  York  Code  of  Civil  Procedure, 
sections  63S,  788,  which  required  service  of  summons  "  within 

i  In  Indiana,  held  that  attachment  Dame  v.  Fales,  3  N.  H.  70;  Nane  r. 

writs  there  run  till  executed,  or  till,  Barbery  (Tex.),  26  S.  W.  151. 

with  reasonable  diligence,  they  may  ■*  Kennedy  v.  Brent,  6  Cr.  187. 

be  executed.     Will  v.  Whitney,   15  5  id. 

Ind.  194  6  Whitney  v.   Butterfield,    13  CaL 

2  Gallup  V.  Robinson.  11  Gray,  20.  335. 

3  Peters  v.  Conwaj-,  4  Bush,  566 ; 


§§  29G-298.]     officek's  duties  and  liabilities.  217 

thirty  cla3"s  after  the  granting  thereof,"  that  Sunday  must  be 
excluded  when  it  is  the  thirtieth  day,  and  that  the  service 
may  be  made  on  the  Monday  following.^ 

Y.  The  Officek's  Duties  and  Liabilities.^ 

§  296.  Service  of  process. —  The  process  should  be  served  upon 
the  person  in  possession  at  the  time  of  the  seizure.'  Such  per- 
.^on  may  be  the  debtor  himself  or  some  person  in  his  employ 
holding  not  as  a  legal  possessor  in  his  own  right  who  can  be 
reached  only  by  garnishment.  The  difference  between  the 
possession  by  a  clerk,  emplo3'ee  or  servant  of  the  defendant 
and  that  by  one  who  holds  under  contract  as  the  legal  pos- 
sessor for  a  stipulated  time  is  sufficiently  apparent.  In  the 
first  case  the  lawful  possession  is  in  the  defendant,  and  the 
property  may  be  directly  attached,  process  being  served  on 
him  and  the  emplo3'^ee  immediately  holding;  in  the  second, 
the  lawful  possession  is  in  the  person  liable  to  garnishment,  as 
above  mentioned. 

§297.  Taldng  too  mnch  or  too  little. —  There  should  be 
enough  taken  under  the  writ  to  satisfy  the  plaintiff's  demand: 
so  the  officer  who  takes  too  little  when  he  might  attach  a 
sufficient  quantity  of  goods  or  other  property  to  pay  the  de- 
fendant's debt  is  liable  to  the  plaintiff.^  There  should  not  be 
too  much  taken,  lest  the  defendant  complain.  He  might 
rightfully  complain  if  the  goods  or  other  property  attached 
should  be  greatly  excessive,^  and  he  would  have  a  remedy  for 
his  wrong  in  an  action  against  the  officer.  So  here  is  the  offi- 
cer, between  the  rock  and  the  gulf.  He  is  responsible  to  both 
parties  for  sound  and  reasonable  discretion  in  performing  his 
dut3\'^     His  safety  is  in  straight  steering. 

§  298.  Force. —  A  sheriff  or  his  deputy,  in  making  a  levv 
under  a  writ  of  attachment,  may  use  such  force  as  necessity 
will  justify.''     The  deputy  may  be  obliged  first  to  show  his 

1  Gribbon  v.  Freel,  93  N.  Y.  93.  P.  200 ;  Hughes  v.  Tennison,  3  Tenn. 

2  See  chs.  24,  25.  Ch.  641. 

3Grieff  v.  Betterton,  18  La.  Ann.  6  Fitzgerald  v.  Blake,  42  Barb.  513; 

349.  Merrill  v.  Curtis,  18  Me.  272 :  Hilliard 

4  Ransom  v.  Halcott,  18  Barb.  56 ;  v.  Wilson.  65  Tex.  286 :  De  Witt  v.  Op- 
Howes  V.  Spicer,  23  Vt.  508.  penheimer.  51  id.  103. 

sMcConnell  v.  Kaufman,  5  Wash.  '  Haggerty  v.  Wilber,  16  Johns.  287. 
686 ;  State  Bank  v.  Martin  (Kan.),  28 


218  ATTACHING.  [§  298. 

authorization,  unless  he  is  already  known  as  a  public  officer 
duly  empowered  to  execute  such  a  writ.  In  other  respects 
his  powders,  as  to  the  use  of  force,  are  as  great  as  those  of  his 
principal  officer,  when  it  is  his  duty  to  make  a  levy.  Though 
violence  may  not  be  done  to  the  debtor's  castle,^  the  dw^elling 
w^here  he  resides  with  his  family,  there  is  not  the  same  sacred- 
ness  attached  to  his  store  or  out-buildings.^  To  make  an 
attachment  the  sheriff  cannot  break  into  a  dwelling.  An  out- 
house may  be  opened  without  first  requesting  the  debtor  to 
unlock  the  door,  though  such  request  is  necessary  before  break- 
ing open  a  barn  or  other  building  adjoined  to  the  dwelling. 
A  store  or  w^arehouse  may  be  broken  open  to  reach  goods  to 
be  attached  when  the  store-keeper  renders  such  action  neces- 
sary by  refusing  admittance.^  Upon  entering  a  store,  either 
by  force  or  otherwise,  the  officer  should  remain  no  longer  than 
may  be  reasonably  necessary  to  perform  his  trust.*  Should 
he  unnecessarily  expel  the  owner  or  exclude  him  from  his  place 
of  business  for  an  unreasonable  time,  the  officer  w^ould  be  lia- 
ble in  damages.^ 

The  sheriff,  in  executing  an  attachment  writ,  may  open  the 
safe  of  a  trust  company  and  the  box  of  the  defendant  to  seize 
and  take  into  custody  securities  and  other  valuables  there  de- 
posited.^ He  should  not  resort  to  force,  however,  in  execut- 
ing such  a  delicate  trust,  before  first  requesting  the  proper 
officer  of  the  trust  company  to  unlock  the  safe  for  him,  and 
also  requesting  the  debtor  to  open  his  own  box  if  the  latter  is 
practicable.'' 

People  u  Hubbard,  24  Wend.  369.  in  Ilsley  v.  Nichols,   12   Pick.    270, 

-  Messner  v.  Lewis,    20  Tex.    221 ;  that  if  a  civil  officer  breaks  open  a 

Fullerton  v.  Mack,   2  Aikens,    415 ;  dwelling-bouse  by  forcing  the  outer 

Burton   v.   Wilkinson,    18  Vt.    186 ;  door,  against  the  prohibition  of  the 

Piatt  V.  Brown,  16  Pick.  553 ;  Solin-  owner,  with  the  direci  and  avowed 

sky  V.  Bank,  85  Tenn.  368.  purpose  of  making  an  attachment  of 

3  Burton  v.  Wilkinson,  18  Vt  189,  the  owner's  goods  in  the  dwelling- 
citing  Penton  v.  Brown,  1  Keb.  698 ;  house,  such  breaking  is  not  onl\'  an 
Haggerty  v.  Wilber,  16  Johns.  287.  unlawful   act,  but    the    attachment 

4  Williams  v.  Powell,  101  Mass.  467 ;  made  by  means  of  it  is  invalid.  And 
Malsom  v.  Spoor,  12  Met.  279.  the  following  authorities,  bearing  on 

5  Perry  v.  Carr,  42  Vt  53.  the  point  f'o  and  con,  were  cited 

6  United  States  v.  Grail,  67  Barb,  and  discussed  by  Shaw,  C.  J. :  Bac. 
304.  Abr.    "Sheriff,"'   N.  3;    Seymane  v. 

7  Clark  V.  Wilson,  14  R  1. 11.    Held  Gresham,  5  Rep.  93;  Lee  v.  Gansel, 


§§  299,  300.]     officer's  duties  and  liabilities.  219 

§  299.  Brealdng  doors. —  An  officer  is  not  only  liable  to 
damages,  and  to  have  his  service  of  writ  invalidated,  by  his 
breakiog  the  front  door  of  the  debtor's  dwelling,  but  also  by 
breaking  the  inner  doors  leading  to  rooms  rented  by  sub- 
tenants, when  such  rooms  are  of  such  a  character  as  to  con- 
stitute the  dwelling-house  of  the  occupants.  Buildings  rented 
in  flats  may  serve  for  illustration.  Each  flat  is  as  sacred  as 
any  resident's  separate  castle.  There  may  be  a  common  en- 
trance, a  common  hall,  and  some  other  parts  of  the  building 
may  be  used  in  common ;  but  each  particular  flat  is  the  home 
of  a  family,  and  therefore  is  inviolable  as  an}^  separate  dwell- 
ing-house.^ 

The  rule  is  that  a  levy  is  not  to  be  effected  by  committing  a 
trespass ;  and  that  the  trespasser  may  not  only  be  punished 
for  his  offense  but  the  civil  act  performed  by  means  of  the 
trespass  will  be  invalidated,  though  there  be  no  other  reason 
for  setting  it  aside.^ 

§  300.  3I(uj  do  u'hat  would  he  trespass  ifivithout  the  ivrit. — 
It  IS  commonly  said  that  the  attaching  officer  must  make  him- 
self liable  for  trespass  in  levying  upon  personal  property  but 
for  the  protection  given  by  the  writ;  or,  in  other  words,  that 
he  must  do  such  acts  as  would  render  him  liable  as  a  tres- 
passer if  not  thus  authorized.  He  may  be  obliged  to  do 
acts,  if  resisted,  Avhich  would  be  not  ordinarily  justifiable  in 
order  to  obtain  and  maintain  possession  and  control.  While 
it  is  true  that  a  "  paper  levy  "  is  nugatory,  and  a  mere  decla- 
ration that  goods  are  seized  is  ineffectual,  yet  there  is  no  need 
of  manipulation  or  any  harsh  taking  where  there  is  no  resist- 
ance made.  There  ought  to  be  an  inventory  or  proper  de- 
scription of  that  which  is  attached,  and  complete  change  of 
custody.  Even  if  the  person  in  charge  of  the  property  before 
seizure  should  remain  in  charge  thereafter,  it  should  be  as  the 
appointed  keeper  that  he  subsequently  holds.     But  no  levy  is 

Cowp.    1 ;   Heminway  v.    Saxton,   3  same  cases  are  reviewed  in  The  Peo- 

Mass.  222 ;  Widgery  v.  Haskell,  5  id.  pie    v.    Hubbard,     24     Wend.     370, 

155;    Luttin  v.  Benin,  11   Mod.   50;  Co  wen,  J. 

Barlow  u  Hall,  2  Anstr.  462;  Love-  i  Swain    v.    Mizner,    8    Gray,   183 

ridge  v.  Plaistow,  2  H.  Bl.  29 ;  Birch  (cited  for  the  principle,  though  not 

V.  Prodger,  4  Bos.  &  Pul.  135  ;  Lyford  the  illustration). 

V.  Tyrrel,  1  Anstr.  85 ;  Wells  v.  Gur-  -  Bally    v.   Wright,    39  Mich.    96 ; 

ney,  8  Barn.  &  Cressw.  769 ;  Wilson,  §  308. 

Ex  parte,  1  Atk.  152.     Many  of  the 


220  ATTACHING.  [§§  301,  302. 

valid  unless  the  officer  gets  legal  possession ;  and  get  it  he 
must  though  acts  ordinarily  deemed  trespass  become  requisite.^ 

§  301.  Triclcery, —  Attachment  effected  by  trick,  treachery, 
fraud  or  trespass  is  reprobated  by  the  courts  and  held  of  no 
legal  force.  The  wrong-doing  officer  not  onlj'^  exposes  him- 
self to  an  action  in  damages  for  his  cunning  and  rascally  ma- 
neuvers, but  he  also  strikes  his  own  act  with  illegality,  so  that 
the  plaintiff  cannot  avail  himself  of  a  seizure  so  made,  though 
not  personally  privy  to  the  officer's  methods.  And  when  the 
plaintiff  himself  is  the  trickster  or  the  trespasser  by  means 
of  deception  practiced  on  the  officer  to  induce  him  to  do 
thino-s  smart;  or  is  a  co-worker  with  the  latter  in  executing  a 
legal  writ  in  an  illegal  Way  so  as  to  create  a  nullity,  both  are 
responsible  to  an3Mnjured  party,  and  the  writ  is  as  though 
it  had  never  been  executed.-  If  the  plaintiff,  however,  is  not 
an  instigator  or  encourager  of  the  officer  in  acts  of  decep- 
tion, intrigue  or  tricker}^,  the  officer  alone  should  be  held  re- 
sponsible. The  court  will  always  judge  from  the  circumstances 
of  each  particular  case  whether  the  official  wrong-doing  was 
such  as  to  invalidate  the  levy.^  It  may  relinquish  jurisdiction 
when  it  finds  such  to  be  the  case.* 

§302.  Deputy. —  The  sheriff  may  deputize  a  disinterested 
person  to  act  in  his  stead,  but  he  cannot  authorize  the  plaint- 
iff himself  to  make  the  levy;^  If  the  property  is  in  the  hands 
of  the  defendant  the  reasons  are  many  and  manifest  why  the 

1  Rix  V.  Silknitter,  57  la.  265 ;  Al-  R.  I.  337 ;  Powell  v.  McKee,  4  La.  Ann. 
len  V.  McCalla,  25  id.  464 ;  Polley  v.  108 ;  Paradise  v.  Farmers'  &  Mer- 
Lenox  Iron  Works,  15  Gray,  513;  chants'  Bank,  5  id.  710;  Wingate  v. 
Haggerty  v.  Wilber,  16  Johns.  287 ;  Wheat,  6  id.  238 ;  Myers  v.  Myers,  8 
Bailey  v.  Adams,  14  Wend.  201 ;  id.  369 ;  Gilbert  v.  Hollinger,  14  id. 
Henry  v.  Quackenbusb,  48  Mich.  441.  See  Hollister  v.  Goodall,  8  Ct. 
415;    Abrams  v.   Johnson,   65    Ala.  332. 

465 ;  Cobb  r.  Gage.  7  id.  619 ;  Caw-  3  Hitchcock  v.  Holmes,  43  Ct  528. 

thorne  v.  McGraw,  9  id.  519 ;  Foster  An  otBcer  got  into  a  dwelling  by  pre- 

V.  Mabe,  4  id.  402 ;   Goode  v.  Long-  tending  that  he  wanted  to  see  the 

mire,  35  id.  668.  debtor's  mother-in-law,  and  when  in 

2  Hart  V.  Seymour,  147  111.  598;  attached  the  furniture.  It  was  held 
Upton  V.  Craig,   57  111.    257 ;  Lesher  that  the  entry  was  lawful. 

V.  Getman,  30   Minn.  321 ;    Pomroy  *  Chubbuck  r.  Cleveland,  37  Minn. 

V.   Parmlee,  9   la.    140;    Herring  v.  466. 

Hoppock,  15    N.   Y.   409 ;    Timmons  5  Dyson  v.  Baker,  54  Miss.  24.     But 

V.  Garrison,  4  Humph.  148  ;  Deyo  v.  see,  as  to  authorizing  a  deputy,  Men- 

Jennison,  10  Allen,  410 ;  Metcalf  v.  derson  v.  Specker,  79  Ky.  509. 
Clark,  41  Barb.  45 ;  Nason  v.  Esten,  2 


§§  303,  304]  WRONGFUL    LEVY.  221 

plaintiff  should  not  serve  the  summons  and  make  the  levy  in 
his  own  behalf.  If  the  creditor  is  attaching  what  is  already 
in  his  own  hands,  he  has  no  occasion  to  summon  himself,  inter- 
rogate himself  as  garnishee,  or  do  any  like  supererogatory 
act.^  No  interested  person  can  lawfully  serve  the  writ  or  make 
the  levy  —  not  even  the  sheriff  himself  if  he  is  interested.^ 

§  303.  Copy  left. —  A  copy  of  the  order  of  the  attachment 
is  generally  required  to  be  left  with  the  person  in  possession 
of  the  premises  on  whom  the  writ  is  served ;  and  the  omission 
of  this  has  been  held  fatal,^  though  it  should  rather  be  treated 
as  an  irregularity.* 

YI.  Weongful  Levt.^ 

§  304.  Plaintiff^s  instructions. —  The  writ  is  not  usually  di- 
rected against  particular  things  but  against  the  alleged  debt- 
or's effects  in  general.  The  plaintiff  may  point  out  particular 
property  of  the  defendant  and  instruct  the  officer  to  attach  it, 
but  if  it  should  turn  out  that  the  thing  thus  pointed  out  and 
seized  does  not  belong  to  the  defendant,  both  the  plaintiff  and 
the  seizing  officer  would  be  liable  for  the  wrono'  done.^  The 
instructions  would  be  a  protection  to  the  officer,  between  him- 
self and  the  plaintiff ;  '^  but  not  between  himself  and  the  injured 
party.  The  third  person  whose  property  is  wrongfully  at- 
tached as  that  of  the  defendant  has  his  action  for  damage 
against  the  officer,  or  the  plaintiff,  or  both,  as  the  nature  of 
the  wrong  done  may  indicate,  w^hether  he  has  intervened  in 
the  attachment  suit  to  protect  his  property  or  not;^  whether 
he  has  demanded  of  the  officer  a  release  of  the  property  or 
not;^  whether  he  has  received  the  property  of  the  officer  and 

1  Graighle   v.  Notnagel,  Pet.  C.  C.  v.  Long,   104   U.  S.  229 ;   Griffith  v. 
246.  Smith,  22  Wis.  646 ;  Gower  v.  Emery, 

2  Dyson  u  Baker,  54  Miss.  24.  18  Me.  79;   Nelson  v.  Cook,   17   111. 

3  Sparp  V.  Baird,  43  Cal.  577.  443 ;  Battis  v.  Hamilton,  22  Wis.  669 ; 

*  Wilkins  v.   Tourtellott,   28  Kan.     Union  Lumbering  Co.  v.  Tronson,  36 
825.  id.  126;  Halpine  v.  Hall,  42  id.  176; 

*  Ch.  24  Lesher  v.  Getman,  30  Minn.  321. 
6  Conner  v.  Long,  104  U.  S.  229;        STrieber  v.   Blacher,   10    Md.    14; 

Marsh  v.  Backus,  16  Barb.  483 ;  Tufts  Shuff  v.  Morgan,  9  Martin  (La.),  592. 

V.  McClintock,  28  Me.  424 ;  Richard-  ^  Rodega  v.  Perkerson,  60  Ga.  516 ; 

son  V.  Hall,  10  Md.  399.  Stickney  v.  Davis,  16  Pick.  19 
^Page  V.  Belt,  17  Mo.  263;  Conner 


222  ATTACHING.  [§§  305, 306. 

given  bond  for  its  delivery  upon  demand  or  not.^  Objections 
to  the  levy  without  specifying  the  defects  is  futile.^ 

§  805.  Due  diligence. —  The  attaching  officer  is  bound  to  use 
all  reasonable  diligence  in  ascertaining  that  the  property  he  is 
about  to  seize  belongs  to  the  defendant  and  is  liable  for  the 
debt;  he  should  make  thorough  inquiry  and  learn  with  as 
great  a  degree  of  certainty  as  possible  that  the  property  is 
attachable,  since  otherwise  he  seizes  at  his  peril.'  lie  should 
inquire  of  the  person  in  charge  of  personal  property  as  to  its 
ownership.* 

§  306.  The  seizing  officer  is  not  liable  as  a  trespasser  when 
he  docs  his  whole  duty  and  yet  some  wrong  ensues  which  is 
beyond  possible  forecast  and  beyond  his  control.  If  he  makes 
all  requisite  inquiry,  uses  all  legal  precaution  against  error,  and 
all  reasonable  diligence,  he  ought  not  to  be  subjected  to  the 
reparation  of  damages  not  resulting  from  his  fault.  Officers 
are  human,  and  the  law  does  not  hold  them  responsible  for  lack 
of  infallibility.  Doing  the  best  possible  under  the  circum- 
stances of  any  particular  case,  and  acting  with  perfect  impar- 
tiality between  the  parties  and  with  entire  respect  for  the 
rights  of  others,  a  seizing  officer  should  be  treated  with  leniency 
even  when  through  error  of  judgment  or  ignorance  of  fact 
after  due  inquir}^  he  should  cause  damage  to  another.  Under 
such  circumstances  he  may  be  legally  responsible,  but  he  ought 
to  have  liberal  consideration  by  court  and  jury.^ 

There  are  many  cases  in  which  it  is  very  difficult  for  the 
most  astute  inquirer  to  ascertain  whether  certain  property 

1  Turner  v.  Lytle,  59  Md.  199,  under  Foss  v.  Stewart,  14  Me.  312 ;  Sibley 
act  of  1876 ;  Johns  V.  Church,  12  Pick.  v.  Brown,  15  id.  185;  Saugster  v. 
557;  Robinson  v.  Mansfield,  13  id.  Commonwealth,  17  Gratt  124;  Coo- 
139.  per  v.  Newman.  45  N.  H.  339 ;  Meade 

2  Davis  V.  Dallas  N.  Bank  (Tex.),  26  v.  Smith,  16  Ct.  346 ;  Lynd  v.  Pickett, 
S.  W.  222;  Publishing  Co.  v.  Hitson,  7  Minn.  184:  Caldwell  v.  Arnold,  8 
80  Tex.  234.  id.  265 ;  Ford  v.  Dyer,  26  Miss.  243 ; 

3  Carlton  v.  Davis,  8  Allen,  94;  Hurlbut  v.  Hardenbrook  (la.),  52  N. 
Morrill  v.  Keyes,  14  id.  222 ;  Gilman  W.  510. 

V.  Hill,  36   N.  H.   311 ;   Richards  v.  4  Hildreth  v.  Fitts,  53  Vt  684. 
Daggett,    4    Mass.    534 ;    Gibson    v.  5  Luce  v.   Hoisington,  54  Vt  428 ; 
Jenny,  15  id.  205 ;  Smith  v.  Sanborn,  Barrett  v.  White,  3  N.  H.  210 ;  Taylor 
6  Gray,  134 ;  Howard  v.  Williams,  2  v.  Jones,  42  id.  25 ;  W^akefield  v.  Fair- 
Pick.  80 ;  Woodbury  v.  Long,  8  id.  man,  41  Yt.  339. 
543;  Bean  v.  Hubbard,  4  Cush.  85; 


§§  307,  308.]  WKONGFUL    LEVY.  223 

belongs  to  the  debtor  or  not.  He  may  be  baffled  in  his  inves- 
tigation by  false  statements  on  the  part  of  the  defendant  or 
of  some  next  friend  who  is  trying  to  cover  the  property  to 
prevent  its  seizure.  In  the  heat  of  contention  men  sometimes 
yield  to  temptation  to  falsity,  and  convey  wrong  impressions 
to  a  seizing  officer,  and  try  to  satisfy  their  consciences  with 
the  erroneous  assumption  that  all  is  fair  in  war. 

§  307.  Third  persons  ousted. —  Even  though  the  third  pos- 
.sessor,  whose  lawful  possession  has  been  disturbed,  may  have 
had  the  property  returned  upon  his  giving  a  receipt  therefor 
(as  mentioned  in  section  304),  the  unlawful  taking  was  tres- 
pass.^ His  receipt  would  bind  him  to  hold  the  property  sub- 
ject to  the  order  of  court,  and  oblige  him  to  restore  it  if  the 
levy  should  be  sustained :  so  his  right  of  action  would  depend 
on  the  decision  in  such  case.  The  officer  is  liable  for  seizing, 
in  a  carrier's  hands,  goods  not  the  defendant's,  and  refusing 
to  surrender  them:^  the  refusal  to  restore  aggravating  the 
trespass,  though  he  ought  not  to  be  judged  harshly  when 
he  has  attached  in  good  faith  and  has  relinquished  with  ready 
good- will  as  soon  as  he  was  credibly  informed  of  his  mis- 
take. He  .would  not  be  liable  to  the  third  person  so  dis- 
turbed in  possession  if  he  was  led  into  his  mistake  by  such 
person  himself;  and  if  the  plaintiff  induced  the  error  by  point- 
ing out  the  property  as  that  of  the  defendant,  he  would  be 
bound  to  indemnif}^  the  officer  for  whatever  the  injured  third 
party  had  recovered. 

§  308.  Trespass. —  It  is  trespass  to  execute  a  writ  of  attach- 
ment upon  property  not  attachable.''  Indeed,  the  officer  can 
hardly  invest  himself  with  the  possession  of  property  belong- 
ing to  another  without  doing  that  which  would  amount  to 
trespass  were  he  not  under  the  protection  of  the  law  and  act- 

1  Williams  v.  Morgan,  50  Wis.  548 ;  ville  v.   Brown,   id.   79 ;  Howard  v. 

Perrj  v.  Williams,  39  id.  339 ;  Rob-  Williams,   2  Pick.    80 ;    Eldridge  v. 

inson    v.    Mansfield,    13  Pick.    139 ;  Lancy.  17  id.  352 ;  Walker  v.  Fitts, 

Morse  v.  Hurd,  17  N.  H.  246 ;  Car-  24  id.   191 ;    Cooper   v.  Newman,  45 

penter  v.  Dresser.  73  Me.  377.  N.  H.  339 ;  Foss  v.  Stewart,  14  Me. 

2Rodegau  Perkerson,  60  Ga.  516.  312;  Bradley  v.  Arnold,  16  Vt.  382; 

3Ladd  V.  Hill,  4  Vt.  164;  White  v.  Kiff  v.  Old  Colony,  etc.  R.  Co.,  117 

Morton,  23  id.  15 ;  Bean  v.  Hubbard,  Mass.  591 ;  Rodega  v.  Perkerson,  60 

4  Cush.  85 ;  Lynd  v.  Picket,  7  Minn.  Ga.  516 ;  Ellis  v.  Bonner,  80  Tex.  198; 

184;  Richards  v.  Daggett,  4  Mass.  Allen  r.  Kirk,  81  la.  658;  §^5  299,  300. 
534 ;  Gibson  v.  Jenny,  15  id.  205 ;  Mel- 


224:  ATTACHING.  [§  309. 

ing  as  its  agent  in  executing  its  process.^  He  could  be  little 
liable  to  the  defendant  for  laying  a  second  attachment  on  per- 
sonal property  already  in  his  hands,  when  the  second  was 
under  a  writ  against  the  same  defendant  to  whom  the  first 
was  opposed ;  for,  if  the  defendant  is  Avronged  by  being  de- 
prived of  his  property,  the  wrong  must  have  been  done  in  tlie 
execution  of  the  first  writ.-  The  plaintiff  is  liable  if  he  directed 
the  wrongful  seizure,'  but  not  liable  otherwise,  when  the 
property  attached  is  not  that  of  the  defendant  but  of  a  third 
person,*  unless  he  avails  himself  of  the  levy.^  If  so,  it  is  no 
excuse  for  him  that  he  is  really  a  creditor  of  the  third  person 
w^hose  property  is  attached.^  If,  after  the  wrongful  attach- 
ment of  a  third  person's  property,  other  attachments  be  laid 
upon  it,  the  oflBcer  is  liable  for  trespass  only  in  making  the 
first  levy.''  The  attaching  creditor  may  render  himself  liable 
to  other  creditors  by  seizing  too  much  or  seizing  on  false 
grounds.^  It  is  held  that  the  defendant  waives  damages  by 
compromising  with  the  parties  plaintiff  after  a  wrongful  at- 
tachment.^ 

§  309.  Every  taking  of  another's  property  in  the  act  of  levy- 
ing upon  the  defendant's  goods  is  not  either  an  attachment 
of  it  or  a  trespass.  The  officer  may  have  to  take  temporarily 
in  hand  the  unattachable  vessel  in  which  the  attachable  goods 
are  contained,  or  remove  the  contents  of  a  vessel  that  is  to 
be  attached,  etc.,  without  committing  any  trespass  or  any 
w^rong;  or  he  may  take  goods  of  another  when  found  as  part 
of  the  common  stock  of  the  defendant,^"  to  separate  them  from 
the  stock. 

1  Henry  v.  Quackenbush,  48  Mich.  Perrin  v.  Claflin,  11  Mo.  13 ;  Norman 
415 ;  McNeil  v.  Moore  (Tex.),  27  S.  v.  Home,  36  Mo.  App.  419 ;  Alfred  v. 
W.  163 ;  Camp  v.  Cliamberlain,  5  Bray,  41  Mo.  487 ;  Kauunck  v.  Cas- 
Denio,  198 ;  McBurnie  v.  Overstreet,  tleman,  29  Mo.  App.  664 ;  Wetzell  v. 
8  B.  Monroe,  300 ;  Beekman  u  Lan-  Naters,  18  Mo,  396;  Peckham  v. 
sing,  3  Wend.  446 ;  Westerf elt  v.  Glass  Co.,  7  Mo.  App.  593 ;  Luebber- 
Pinckney,  14  id.  123 ;  Good  v.  Long-  ing  v.  Oberkoetter,  1  id.  393. 

mire,  35  Ala.  668;  Allen  v.  McCalla,  (-Miss.  Mills  v.  Meyer,  83  Tex.  433. 

25  la.  464 ;  Haggerty  v.  Wilber,  16  •  Ginsberg  v.  Pohl,  35  Md.  505. 

Johns.  287.  8  Frieberg  v.   Frieberg    (Tex.),    19 

2  Luce  V.  Hoisington,  54  Yt.  428.  S.  W.  791. 

3  Corner  v.  Mackentosh,  48  Md.  374.  ^  Judson  v.  Lewis,  7  La.  Ann.  55. 

4  Butler  u.  Borders,  6  Blackf.  160.  lO  Franklin    v.   Gumersell,    11    Mo. 

5  Lovejoy   v.   Murray,   3  Wall.    1 ;  App.    306 ;    Hewes   v.   Parkman,   20 


§  310.]  WRONGFUL    LEVY.  225 

How  can  a  sheriff  always  accurately  distinguish  between 
the  defendant's  property  and  that  of  others  when  both  are  in- 
termixed? Sometimes  he  may  attach  the  mass,  after  all  re- 
quired effort  to  distinguish  the  one  part  from  the  other,  or 
when  the  compound  is  of  a  nature  to  render  the  ingredients 
indistinguishable;  and  he  must  show  such  fact  in  his  return.^ 
He  is  bound  to  separate  the  defendant's  from  the  other's  por- 
tion, and  to  avoid  the  attachment  of  the  latter,  or  to  give  it 
up  after  seizing  and  before  making  his  return,  if  the  owner 
thereof  exhibits  to  him  satisfactory  evidence  of  his  ownership 
and  the  part  claimed  is  susceptible  of  separation  from  the 
whole.-  If  the  confused  goods  are  in  possession  of  a  third 
person  who  owns  them  in  part,  the  situation  would  be  mani- 
festly different  from  that  where  the  defendant  is  in  possession ; 
and  the  officer  ought  not  to  seize  the  mass  and  take  it  into 
custody.'  The  defendant's  portion  could  be  reached  b}^  gar- 
nishment. Damages  cannot  be  successfully  claimed  by  one 
who  stood  by  and  saw  his  non-liable  goods  attached  with  liable 
property.* 

§  310.  Damages. —  When  the  seizing  officer  renders  himself 
liable  to  damages  as  a  trespasser  for  wrongfully  seizing  the 
property  of  some  person  other  than  the  defendant  in  execut- 
ing a  writ  of  attachment,  he  involves  his  sureties  also,^ 

If  attached  property  is  injured  while  in  the  custody  of  the 
officer  and  through  his  fault,  he  will  be  liable  in  damages  to 
the  owner  in  case  the  plaintiff  should  relinquish  the  attach- 
ment.^ If  the  seizing  of  it  is  the  ground  of  complaint,  the 
wrong  should  be  charged  as  done  to  the  property  so  as  to 
make  the  officer  a  trespasser  ah  initio;  not  as  done  to  the 

Pick.  90 ;  Towns  v.   Pratt,  33  N.  H.  206.     Compare  First  Nat.    Bank   v. 

345.  Houts,  85  Tex.  69. 

1  Sawyer  v.  Merrill,  6  Pick.  478 ;  ^  Sangster  v.  Commonwealth,  17 
Morrill  v.  Keyes,  14  Allen,  222 ;  Wal-  Grat.  124 :  State  v.  Moore,  19  Mo. 
cott  V.  Keith,  3  Fos.  196;  Albee  v.  369:  Peoples.  Schuyler,  4  Com.  173; 
Webster,  16  N.  H.  363 ;  Wilson  v.  Rodega  v.  Perkerson,  60  Ga.  516 ; 
Lane,  33  id.  466.  Archer  v.  Noble,  3  Me.  418 ;  Harris  v. 

2  See  Davis  v.  Stone,  120  Mass.  228;  Hanson.  11  id.  241 ;  Commonwealth 
Shumway  v.  Rutter,  8  Pick.  443;  v.  Stockton,  5  Mon.  193;  Carpenter 
Treat  v.  Barber,  7  Ct.  274.  v.  Dresser,  72   Me.  377 ;  Van  Pelt  v. 

3  Id.  Littler.  14  Cal.  194;  Becker  v.  Dun- 
*  Goetz  V.  Hanchett,   40  111.    App.     ham,  27  Minn.  32. 


15 


6  Becker  v.  Bailies,  44  Ct.  167. 


226  ATTACIIIXG.  [§311. 

proceeds.^  The  damages  for  unlawful  seizure  may  include 
loss  of  business  with  respect  to  goods  seized,  costs  of  defense, 
etc.,2  but  not  always  attorney's  fees.' 

§  311.  In  most  of  the  states  an  action  cannot  be  maintained 
on  w^rongful  attachment  unless  there  has  been  a  decision 
against  the  plaintiff  in  the  attachment  suit.*  If  malice  is 
charged  in  such  action  the  jury  may  presume  it,  if  the  party 
charged  had  no  probable  cause  to  believe  the  allegations  he 
made  in  his  affidavit  to  procure  the  attachment.'^  A  judg- 
ment in  favor  of  the  creditor,  sustaining  the  attachment  made 
by  him  of  the  defendant's  property,  w^ould  obviously  render 
a  subsequent  suit  for  damages  for  wrongful  attachment  by 
the  attachment  defendant  against  the  attaching  creditor  both 
unnecessary  and  absurd ;  indeed,  such  action  could  be  defeated 
at  the  threshold  by  pleading  tlie  former  judgment. 

But  it  is  not  the  practice  in  all  of  the  states  for  the  defend- 
ant to  await  the  decision  of  the  attachment  suit  before  claim- 
ing: damaixes  for  wrong'ful  attachment.  In  some  the  defend- 
ant  ma}'"  reconvene,  claiming  damages,  when  he  answers  in 
the  attachment  suit.  He  may  claim  them  when  the  attach- 
ment has  been  abandoned ;  but  its  abandonment  creates  no 
presumption  that  it  was  wrongful.^ 

1  Bentley  v.  Wliite,  54  Vt.  564.  Petty  v.   Lang,   81    Tex.    238,    242 ; 

2  Marqueze  v.  Southeimer,  59  Miss.     Watts  v.  Nichols,  32  Hun,  276. 
430,  in  exposition  of  Miss.  Code,  1880,        »  Bozeman  v.  Shaw,  37  Ark.  160. 

§  2340.  6  Frank  v.  Tatum  (Tex.),  26  S.  W. 

3  Patton  V.  Garrett,  37  Ark.  605.  900. 
*  Swan  V.  McCracken,  7  Lea,  626 ; 


CHAPTEE  IX. 

THE  RETURN  AFTER  DIRECT  ATTACHMENT. 

L  Stating  the  Execution  of  the  Writ §§  312-317 

II.  Description  op  Attached  Property 318-321 

III.  Requisites  op  the  Return       .     , 323-331 

IV.  Amendments 332-338 

V.  Return  "Not  Found"  — Order  of  Publication      .     .  339-341 

VI.  Publication  Notice 343-355 

I.  Stating  the  Execution  of  the  "Weit. 

§312.  How  executed. —  The  officer  who  has  executed  the 
writ  must  account,  within  the  time  specified  therein,  to  the 
court,  in  writing,  showing  whether  he  has  seized  any  prop- 
erty ;  what  he  has  seized ;  that  it  belongs  to  the  defendant ; 
how  and  when  he  took  it  from  the  defendant,  or  how  and 
when  he  attached  in  the  hands  of  third  persons,  and  all  essen- 
tial matters.^  The  court  takes  its  knowledge  of  the  actual 
attachment  from  the  sheriff  or  other  seizing  officer's  official 
report  of  it ;  that  is  an  indispensable  link  in  the  chain  of  the 
proceedings;  and  the  officer  should  make  the  statement  full 
and  clear,  but  no  form  is  prescribed  and  technical  accuracy  is 
not  required.'  It  is  necessary  that  the  attachment  and  return 
be  by  an  officer.^ 

§  313.  The  important  matter  is  certainty  and  a  substantial 
compliance  with  the  law.*     Thus,  the  recitation  of  the  affida- 

1  Page  V.  Generes,  6  La.  Ann.  551 ;  2  Rowan  v.  Lamb,  4  Greene,  468 ; 

Stockton  V.  Douney,  id.  581 ;  Nichols  Byrd  v.  Hopkins.  8  Sm.  &  M.  441 ; 

V.  Patten,  18  Me.  231 ;  Desha  v.  Baker,  Bannister  v.  Higginson,  15  Me.  73 ; 
3  Ark.  509 ;  Gibson  v.  Wilson,  5  id.  Baldwin  v.  Conger,  17  Miss.  516. 
422;  Willard  v.  Sperry,  16  Johns.  121 ;  3  Joseph  v.  Cawthorn,  74  Ala.  411. 
Bryan  v.  Trout,  90  Pa.  St.  492 ;  Moore  *  Pond  v.  Baker,  55  Vt.  400 ;  Buck- 
V.  Kidder,  55  N.  H.  488;  Wilder  v.  i\nv.  Crampton,  20  id.  261;  Thomp- 
Holden,  24  Pick.  8;  Painer.  Farr,  118  son  v.  Eastburn,  16  N.  J.  L.  100; 
Mass.  74 ;  Moore  v.  Coates,  43  Miss.  Meuley  v.  Zeigler,  23  Tex.  88 ;  Stod- 
225 :  People's  Bank  v.  West,  67  id.  art  v.  McMahan,  35  id.  267 ;  Saund- 
729 ;  Hall  v.  Stevenson,  19  Oreg.  153 ;  ers  v.  Columbus,  etc.  Ins.  Co.,  43  Miss. 
Brown  v.  Carroll,  16  R.  L  604.  583 ;  Tucker  v.    Byars,  46    id.    549 ; 


228  KETURN    AFTER    DIRECT    ATTACHMENT.  [§  314. 

vit  should  be  made  if  the  statute  requires  it ;  ^  and  any  require- 
ment as  to  the  defendant's  ownership  of  the  property,  descrip- 
tion, valuation,  time  and  manner  of  attaching,  etc.,  must 
be  obeyed;  but,  in  the  absence  of  express  statutory  injunc- 
tions on  these  subjects  with  respect  to  the  return,  all  that  is 
necessary  is  an  honest  report  showing  obedience  to  the  writ. 

§  314.  That  attached  property  hclongs  to  defendant  should 
appear. —  The  fact  that  the  property  was  seized  as  that  of  the 
defendant  should  plainly  appear  if  not  definitely  stated.'^ 
Should  the  return  fail  to  state  this  fact,  yet  aver  that  the  at- 
tachment was  made  in  obedience  to  the  writ,  there  is  an  im- 
plication that  the  property  was  seized  as  that  of  the  defend- 
ant.'' And  officers  have  been  allowed  to  make  the  statement 
definite  in  this  respect  by  emendation  after  filing.* 

There  is  no  important  conflict  of  decisions  on  this  subject. 
It  is  well  settled  that  if  the  statute  makes  it  sacramental  that 
the  officer  must  definitely  state  that  the  propertj^  belongs  to 
the  defendant,  he  must  comply ;  that  if  it  does  not,  no  direct 
statement  is  necessary  if  there  is  shown  a  substantial  obedi- 
ence to  the  writ ;  that  the  statement  of  ownership  is  conclusive 
only  of  the  fact  that  the  property  was  seized  as  that  of  the 
person,  named ;  that  the  question  of  ownership  is  yet  open  for 
contest  between  those  interested  in  its  assertion  or  denial,  and 
that  the  plaintiff  is  not  to  lose  the  benefit  of  his  attachment 

Rankin  v.  Dulaney,  43  id.  597 ;  Whar-  5  Randolph,   596 ;    Stoddart  v.  Mc- 

ton  V.  Conger.  17  id.  510 ;  Ezelle  v.  Mahon,  35  Tex.  267 ;  Banister  u  Hig- 

Simpson,  42  id.  515;  Jeffries  v.  Har-  ginson,  15  Me.  73. 
vie,  38  id.  97.  3  Horton  v.  Monroe  (Mich.),  57  N.  W. 

1  Woodley  v.  Shirley,  Minor,  14.  109 ;  Miller  v.  Fay,  40  Wis.  633 ;  John- 

'^  Buck  Reiner  Co.  v.  McCoy  (la.),  52  son  v.  Moss,  20  Wend.  145 ;  Porter  v. 

N.  W.  514;  Windmiller  v.  Chapman,  Pico,  55  Cal.  165:  Bickerstaflf  r.  Pat- 

139  111.  163;  Pierce  v.  Jackson.  65  N.  terson,  8  Port.  245;  Kingr.  Bucks,  11 

H.  121;  Barron  v.  Smith,  63  Yt.  121;  Ala.  217;  Thornton  v.  Winter,  9  id. 

Curwensville  Manuf.  Co.  u  Bloom,  10  613;    Lucas  v.  Goodwin,  6  id.   831; 

Pa.  Co.  Ct.  R.  295 ;  Cousins  v.  Alworth,  Saunders  v.  Columbus  Life  Ins.  Co., 

44  Minn.  505 ;  Robertson  v.  Hodge,  83  43  Miss.  583 ;  Kirksey  v.  Bates,  1  Ala. 

Va.  124 ;  Ofterdinger  v.  Ford,  86  Va.  303 ;  Miller   v.   McMillan,  4  id.    527. 

917.     Compare  Willis  v.  Mooring,  63  See  McClure  v.  Smith,  14  Colo.  297. 
Tex.   340 ;  Rapine  v.    McPherson,   2        ^  Mason  v.  Anderson,  3  T.  B.  Mon. 

Kan.  340 ;  Anderson  u  Scott,  2  Mo.  293 ;  Anderson   v.   Scott,  2   Mo.    15 : 

15;  Maulsby  v.  Farr,  id.  438;  Ridge-  Bank  of  North  West  v.  Taylor,  16 

way  V.  Farr,  id.  440 ;  Mason  v.  An-  Wis.    609 ;  Buller  v.  Woods,  43  :Mo. 

derson,  3  Mon.  293 ;  Clay  v.  Neilson,  App.  494. 


I 


§§  315,  316.]  STATING    EXECUTION    OF    WKIT.  229 

because  the  defendant  was  not  definitely  named  as  the  owner 
in  the  return. 

§  315.  The  defendant  who  has  been  summoned,  or  who  has 
appeared,  cannot  deny  that  the  property  seized  is  his,^  or 
complain  that  the  officer  did  not  report  it  to  be  his.  If,  how- 
ever, he  is  notified  only  by  publication  and  does  not  appear; 
and  if  it  were  good  law  that  any  property  of  his  can  be  exe- 
cuted to  effectuate  a  judgment  against  him  under  such  cir- 
cumstances,- he  would  be  interested  afterwards  in  showing 
that  the  attached  propert\^  was  not  his  and  that  publication 
alone  did  not  give  jurisdiction.  So  a  purchaser  defending  an 
ejectment  suit  is  vitally  interested  in  the  question  whether 
the  attached  and  condemned  property  belonged  to  the  attach- 
ment defendant.  But  in  neither  case  can  the  officer's  return 
be  taken  as  proof  of  the  fact.  Both  may  be  concerned  as  to 
his  return  of  ownership  with  regard  to  the  validity  of  the  at- 
tachment; for  if  it  is  reported  as  belonging  to  any  other  per- 
son than  the  defendant,  the  attachment  is  void.  The  proceed- 
ing being  iii  rem  with  limited  notice  and  effect  cannot  hold  as 
one  against  a  thing  irrespective  of  persons. 

§  316.  Defendant's  i)resence  immaterkd. —  Whether  the  de- 
fendant is  in  court  or  not  it  ought  to  make  no  difference  with 
regard  to  the  importance  of  stating  in  the  return  the  fact  that 
the  property  attached  belongs  to  him.  The  attachment's  va- 
lidity does  not  depend  upon  his  being  served  or  being  in  court. 
If  invalid,  his  appearance  does  not  necessarily  cure  it;  if  valid, 
his  non-appearance  after  notification  by  publication  cannot 
impair  it.  Distinction  has  been  made,  however,^  but  it  has 
not  been  generally  drawn. 

The  description  of  personal  property  as  belonging  to  the 
defendant  has  been  held  necessary,*  yet  the  taking  of  the 
property  from  the  possession  of  the  defendant,  its  preserva- 
tion in  the  custody  of  the  sheriff,  and  the  presumption  that 
that  officer  has  done  his  dut}^  and  that  his  answer  is  respon- 

1  Campbell   v.  Morris,  3  Harris  &  erty  were  attached ;  Clay  v.  Neilsou, 

Henry  (Md.),  553.  5  Randolph  (Va.),  596;  Mason  v.  An- 

-  See  chapter  on  Jurisdiction.  derson,  3  ]Monroe,  293 ;  Anderson  v. 

3  Stoddart  v.    McMahon,   35    Tex.  Scott,  2  Mo.   15 ;  Maulsby  v.  Farr,  3 

267 ;  Meuley  v.  Zeigler,  23  id.  88.  id.  438 ;  Ridgeway  v.   Farr,  id.  440 ; 

*  Pond  V.   Baker,   55   Yt.    400,    in  Repine  v.  McPherson,  2  Kan.  340. 
which  both  real  and  personal  prop- 


230  RETURN    AFTER    DIRECT    ATTACHMENT.       [§§  317,  318. 

sive  to  the  command  that  he  seize  property  of  the  defendant, 
should  be  deemed  sufficient  and  has  been  so  considered.^  The 
plaintiff  is  relieved  from  filing  his  affidavit  that  there  is  no 
personalty  in  order  to  attach  realty,  when  the  sheriff  has  re- 
turned no  personalty  found  and  realty  attached  to  execute 
judgment.^ 

§  317.  Title  need  not  he  slioivn. —  If  property,  real  or  per- 
sonal, is  attached  as  the  defendant's,  and  is  really  his,  and  is 
described  with  certainty,  it  seems  of  little  importance  what 
the  sheriff  says  about  the  title,  unless  he  should  aver  the  title 
to  be  in  some  person  other  than  the  defendant.  Should  he 
make  return  that  he  has  seized  some  third  person's  land,  the 
attachment  would  be  invalid  since  it  depends  much  upon  the 
return;  the  presumption  that  the  officer  had  done  his  duty 
would  be  removed,  and  the  notice  to  the  tenant  in  possession 
would  not  alone  constitute  a  valid  levy. 

If  the  defendant,  in  the  absence  of  any  statement  by  the 
sheriff  as  to  whom  the  attached  property  belongs,  should  ap- 
pear and  claim  it,  he  would  be  estopped  from  afterwards 
attacking  the  attachment  on  the  ground  that  the  pro|)erty  was 
not  his,  unless  his  title  has  accrued  since  the  levy.  The  ques- 
tion always  is,  whether  the  property  belonged  to  the  defend- 
ant at  the  precise  time  when  it  was  attached.  If  he  sold  and 
transferred  it  before,  or  if  he  bought  it  since,  the  attachment 
is  invalid.  Nearly  all  the  difficulties  with  respect  to  the  at- 
tachment of  land  as  that  of  the  defendant  depend  for  solution 
upon  ])rinciples  applicable  to  titles,  which  the  opinion  and 
statement  of  the  sheriff  does  not  at  all  affect.  However,  if 
property  is  attached  as  the  defendant's  when  it  was  not  and 
is  not  his,  he  has  no  interest  to  attack  the  attachment. 

II.  Description  of   the  Attached  Property. 

§  318.  Identification. —  The  law  is  well  settled  as  to  what 
other  description  of  the  attached  property  is  necessary.  It 
must  be  such  as  to  identify  it.     Seeming  conflicts  of  decisions 

1  Drake  v.   Mooney,    31   Vt.    619;  teison,  8  Porter,  245;  King  t\  Bucks, 

Porter  v.  Pico,  55  Cal.  165;  Johnson  11  Ala.  217.     See  Silver  Bow,  etc.  Co. 

V.  Moss,  20  Wend.  145 ;  Lucas  v.  God-  v.  Lowry,  5  Mont.  618. 
win,  6  Ala.  831 ;  Bickerstaff  v.  Pat-        2  Webster  v.  Daniel,  47  Ark.  131. 


§  31S.]       DESCRIPTION  OF  ATTACHED  PKOPEETT.  231 

on  this  subject  will  be  found  not  really  such.  The  differences 
turn  upon  details  —  whether  they  amount  to  certainty  of  iden- 
tification in  particular  cases.  In  this  there  is  nothing  remark- 
able, since  the  circumstances  differ  in  every  case,  and  courts 
are  always  likely  to  vary  with  each  other  in  their  views  of 
evidence  on  minor  points.  The  principle  may  be  fairly  said 
to  be  uniformly  recognized  that  the  return  must  show  to  a 
certainty  what  has  been  attached,  and  describe  it  so  that  it 
cannot  be  mistaken  for  something  else.  A  ship  is  sufficiently 
identified  if  described  as  the  ship  Orion,  of  seven  hundred 
tons  burden,  together  with  her  tackle,  apparel  and  furniture, 
the  property  of  the  defendant  herein;  the  steamboat  iVa^cA^s, 
etc.  (similar  additions  following) ;  but  should  a  nameless  and 
unknown  water-craft  be  attached,  such  as  a  flat-boat,  a  more 
particular  characterization  would  become  necessary,  such  as 
the  length  and  width,  or  some  other  matter  essential  to  the 
identity  of  the  property.  The  best  description  of  land  is  by 
metes  and  bounds,  but  it  is  not  indispensable.  If  the  defend- 
ant owns  but  one  farm  in  a  county,  and  the  return  is  that  his 
farm  in  that  county  is  attached,  it  would  ordinarih^  be  suffi- 
cient in  an  attachment  proceeding,^  since  only  the  defendant 
can  be  concluded  by  the  judgment,  though  it  would  be  insuffi- 
cient were  the  proceeding  one  to  conclude  the  world,  like  an 
action  to  fix  the  status  of  a  thing  forfeited.  So,  if  the  attach- 
ment defendant  owns  but  one  house  and  lot  in  a  city,  it  would 
be  better  to  describe  it,  for  instance,  as  the  three-story  brick 
house,  numbered  three  hundred  and  sixty,  on  Thalia  street,  in 
the  square  numbered  forty  on  the  city  plan,  etc.,  together 
with  his  lot  on  which  the  house  stands,  giving  the  names  of 
the  streets  which  bound  the  square;  but  if  it  is  the  only  house 
of  the  defendant  situated  in  the  city,  it  might  be  designated 
as  his  house,  together  with  his  lot  on  which  it  stands,  in  the 
city.  The  sheriff  is  not  absolutely  bound  to  resort  to  the 
records  and  give  a  synopsis  of  the  recordation,  but  that  would 
enable  him  to  give  a  better  description.^ 

1  Moore  v.  Kidder,  55  N.  H.  488 ;  scription  would  be  sufficient  to  point 

Howard  v.  Daniels,  2  id.  137 ;  Crosby  to  the  records  for  a  perfect  descrip- 

V.  Allyn.  5  Greenl.  453.  tion.     Bryant  v.  Osgood,  52  N.  H.  188. 

^  Such  certain  though  general  de- 


232  RETURN    AFTER   DIRECT    ATTACHMENT.       [§§  319,  320. 

§319.  Descriding  store  goods. —  A  stock  of  goods  is  often 
the  subject  of  seizure.  If  the  whole  stock  in  a  store  is  at- 
tached, described  as  the  defendant's  entire  stock  of  dry  goods, 
or  of  hardware,  or  of  groceries,  as  the  case  may  be;  as  being 
in  a  certain  building  (giving  the  number  of  the  building  and 
the  name  of  the  street,  city,  etc.),  the  description  could  not 
be  mistaken;  and  as  the  sheriff  must  take  the  key  and  keep 
control  personally  or  through  a  deputy  or  some  other  appointed 
custodian,  there  could  hardly  be  raised  any  question  as  to  the 
identity  of  the  property  seized.^  He  is  not  obliged,  in  every 
case,  to  take  an  invoice  of  the  goods  and  attach  it  to  his  re- 
turn.' 

§320.  Certainty. —  Should  he  attach  only  some  portion  of 
the  goods,  certainty  would  require  that  he  make  an  inventory 
and  attach  it  to  his  report.  Should  he  attach  a  single  article, 
he  should  designate  it  with  precision.  Suppose  a  horse  is 
attached:  if  returned  simply  as  ''a  horse"  belonging  to  the 
defendant,  the  indefiniteness  would  not  render  the  attachment 
vicious,  since  the  officer  would  have  the  attached  horse  in 
custody;  but  it  would  be  better  to  say  a  bay  horse,  white, 
black,  as  the  case  might  be;  and  if  the  animal  is  a  noted 
one  —  a  celebrated  trotter,  for  instance  —  the  name  would 
conduce  to  a  better  description.  Courts  will  judge,  in  each 
particular  case,  whether  the  property  seized  is  properly  iden- 
tified, or  whether  it  is  so  loosely  described  as  to  be  easily 
'confounded  with  other  property.^     When  "all"   of  the  de- 

1  Mayer  v.  Brooks,  74  Ga.  526.  Pettengill,  13  id.  341 :  Ela  v.  Shepard, 

2  There  must  be  an  inventory,  32  id.  277 ;  Bryant  i'.  Osgood,  52  id. 
when.  White  r.  Prior,  88  Mich.  647 ;  182;  Crosby  v.  Allyn,  5  Me.  45.3: 
Langtry  v.  Circuit  Judge,  68  id.  451.  Haynes  v.  Small,  22  id.  14 ;  Carleton 
General  enumeration  of  goods  may  v.  Ryerson,  59  id.  438 ;  Newhall  v. 
suffica  Sweetzer  v.  Sparks  [Tex.  Kinney.  56  Vt,  591 ;  Pond  v.  Baker, 
App.),  21  S.  W.  724.  See  Kern  v.  58  id.  293 ;  Fullam  r.  Stearns,  30  id. 
Wilson,  82  la.  407.  443;  Toulmin  v.  Lesesne,  2  Ala.  359; 

3  Porter  v.  Pico,  55  Cal.  165 ;  Fen-  Gar}-  v.  McCown,  6  id.  370 ;  Pearce 
glin  V.  Cairo  &  St.  Louis  R.  R  Co.,  6  v.  Baldridge,  7  Ark.  413 ;  Porter  v. 
Mo.  App.  580;  Pierce  v.  Strickland,  Byrne,  lOInd.  146;  Messner  r.  Lewis, 
2  Story,  292;  Buckhardt  v.  McClel-  20  Tex.  221 ;  Meuley  r.  Zeigler,  23  id. 
Ian,  1  Abb.  App.  Dec.  263 ;  Oysted  v.  S8 ;  Hancock  v.  Henderson,  45  id. 
Shed,  12  Mass.  513;  Taylor  r.  Mixter,  479;  Hilliard  f.  Wilson,  76  id.  180, 
11  Pick.  341;  Welsh  v.  Joy,  13  id.  Rogers  v.  Bonner,  55  Barb.  9;  Perrin 
477 ;  Baxter  v.  Rice,  21  id.  197 ;  Moore  v.  Leverett,  13  Mass.  128. 

V.   Kidder,    55   N.  H.   488;  Bruce  v. 


§  321.]  DESCKIPTION    OF    ATTACHED    PROPERTY.  233 

fendant's  property  was  returned  as  attached,  the  description 
was  held  sufficient.^ 

An  attachment  may  be  dissolved  because  of  uncertainty  of 
description  in  the  return,  if  the  defect  is  not  cured  in  any 
legal  way,  because  the  validity  of  the  lien  depends  upon  posi- 
tiveness  as  to  that  upon  which  it  rests ;  and  as  a  tenant  in 
possession  of  real  estate  would  have  no  proper  notice  by  an 
inadequate  description  indorsed  upon  the  writ  served  upon 
him,  there  would  be  no  valid  attachment.^ 

§  321.  Value. —  Since  the  sheriff's  duty  is  to  attach  prop- 
erty enough  to  cover  the  claim  sued  upon,  when  he  is  not 
restricted  to  less  by  instructions  from  the  plaintiff,  he  should 
designate  in  his  return  the  approximate  value  of  whatever  he 
has  seized,  which  may  be  ascertained  by  appraisement,  and 
which  must  be  so  ascertained  under  some  statutes.*  An  ap- 
praiser's certificate  put  on  the  back  of  the  writ,  and  made 
part  of  the  return,  is  sufficient  report  of  the  value  of  goods 
attached.*  A  return  showing  enough  property  seized  to  sat- 
isfy the  sum  claimed  by  the  plaintiff  in  his  prayer  w^ill  show 
substantial  obedience  by  the  officer  to  the  mandate,  though 
the  several  counts  of  the  plaintiff's  declaration  may  amount 
to  a  statement  of  greater  indebtedness  on  the  part  of  the  de- 
fendant than  that  for  which  the  plaintiff  prayed.^ 

1  Carter  v.  Koshland,  13  Oreg.  493.  be  cured  by  legal  presumption  where 
A  description  of  cattle  in  range  by  the  statute  does  not  imperatively  re- 
brands,  etc.,  was  held  sufficient,  quire  a  statement  of  the  amount. 
Davis  V.  Dallas  N.  Bank  (Tex.  App.),  Childs  v.  Ham,  33  Me.  74 ;  Barney  v. 
26  S.  W.  223,  distinguishing  Gunter  Weeks,  4  Vt.  146. 

V.  Cobb,  82  Tex.  603.     But  the  return  *  Kennedy  v.   Pike,   43    Me.    423 ; 

must    show   where    the    cattle  are.  Horton  v.  Monroe  (Mich.),  57  N.  W. 

Keniston  v.  Stevens  (Vt.),  39  A.  313.  109. 

2  Pond  V.  Baker,  55  Vt.  403 ;  Meu-  ^when  the  amounts  claimed  in 
ley  V.  Zeigler,  23  Tex.  88 ;  Porter  v.  the  counts  in  the  writ  exceed  the  ad 
Byrne,  10  Ind.  146 ;  Hathaway  v.  damnum,  the  statement  of  the  latter 
Larrabee,  27  Me.  449 ;  Lambard  v.  as  "  the  sum  sued  for "  was  held  to 
Pike,  33  id.  141 ;  Henry  v.  Mitchell,  be  a  compliance  with  the  law  in  an 
33  Mo.  513;  Fitzhugh  v.  Hellen,  3  officer's  return  to  the  registry  of 
Har.  &  J.  306.  See  Green  v.  Pyne,  1  deeds  of  an  attachment  of  real  es- 
Ala.  335.  tate.     Lincoln  v.  Strickland,  51  Me. 

3  Neglect  to  insert  the  value  may  321. 


23i  EETCEN    AFTER    DIRECT   ATTACHMENT.       [§§  322,  323. 

III.    KeQUISITES    of    THE    EeTURN. 

§  322.  On  wliom  ivrit  served. —  If  a  corporation  is  served, 
the  officer  should  show  upon  what  representative  of  the  body 
the  service  was  made.  There  should  not  be  a  vague  state- 
ment that  the  writ  was  served  upon  an  agent  of  the  corpora- 
tion; for,  though  his  name  may  be  coupled  with  his  designa- 
tion as  agent,  it  may  be  that  he  is  not  such  an  agent  as  will 
make  the  service  upon  him  a  legal  one  on  his  principal.  He 
should  be  described.^  Every  agent  of  a  corporation  cannot 
stand  for  the  body  when  it  is  suing  or  being  sued.  The  pres- 
ident is  usually  the  proper  representative  of  a  corporation  upon 
whom  process  binding  it  may  be  served,  but  an  inferior  officer 
may  be  duly  authorized  to  represent  a  corporation  in  this  re- 
spect. How  are  we  to  know,  when  an  officer  names  a  man 
on  whom  process  has  been  served,  and  adds  that  he  is  agent 
of  tht)  corporation  (defendant  or  garnishee  in  the  suit,  as  the 
case  may  be),  that  the  corporation  itself  has  been  reached  ?- 

§  323.  Iveturn  of  service  is  defective  in  Louisiana  if  it  does 
not  state  the  name  of  the  person  served,  or  account  for  not 
stating  it;  and, generally,  if  it  does  not  state  that  such  person 
resided  at  his  domicile  when  served.^  A  return  showing  prop- 
erty attached  but  no  service  on  either  of  two  defendants, 
and  no  reason  given  for  the  omission,  does  not  warrant  an 
order  of  publication;^  and  it  must  show  from  whose  posses- 
sion the  property  was  taken.^  Presumption  favors  the  re- 
turn,^ but  essentials  must  appear.^ 

1  Hargis  v.  Eailroad  Co.,  90  Ga.  42.  Cole  v.  Hocha,  21  id.  613 ;  Feazel  v. 

2  Held  in  Lake  Shore,  etc.  Ry.  Co.  Cooper,  15  id.  462 ;  Corcoran  v.  Rid- 
V.  Hunt,  39  Mich.  469,  that,  under  dell,  7  id.  268 ;  Oakey  v.  Drummond, 
g  6463,  Comp.  Laws  (Howell's  Stat,  4  id.  363 ;  Kendrick's  Heirs  v.  Ken- 
§8055),  the  "general  or  special  agent"  drick,  19  La.  36;  Pilie  v.  Kenner,  16 
of  a  corporation  on  whom  a  sum-  id.  570;  Lacej- r.  Kenley, Sid.  16  ;  Put- 
mons  in  garuisiiment  may  be  served  nam  v.  Banking  Co.,  3  Rob.  (La.)  232. 
is  one  having  controlling  authority  "*  Cochrane  v.  Johnson,  95  Mich.  67 ; 
in   respect  to  some  department  of  How.  Stat.,  §  8003. 

corporate    business,   and    return    of  ^  White  v.  Prior,  88  Mich.  647. 

service  on  "  John  W.  Drew,  agent  of  ^  Head  v.  Daniels.  38  Kan.  1. 

the  within  named    defendant,"  was  ^.^fe,  generalh^  Riordan  r\  Britton, 

insufficient  69  Tex.  198 ;  Barron  v.  Smith,  63  Vt 

3  Lehman  v.  Broussard,  45  La.  Ann.  121 ;  First  N.  Bank  v.  Greenwood,  79 

;  O'Hara  n  Improvement  Co..  42  Wis.   269;    Spengler    v.   O'Shea,    65 

id.  226;  Adams  v.  Basile,  35  id.  101;  Miss.  75. 


§§  324:,  o25.]  EEQUISITES    OF   EETCRN-.  235 

§  324:.  Eeimrt  of  notice  given. —  Where  landed  property,  such 
as  a  house  and  lot,  is  attached,  it  is  important  that  notice  be 
given  to  the  tenant  in  possession,  or  a  copy  of  the  writ  left 
with  him,  or  some  act  showing  the  transfer  of  legal  possession 
from  the  defendant  to  the  officer,  if  the  law  of  the  state  re- 
quires such  methods  of  seizure  or  any  one  of  them,  or  like 
methods;  and  whatever  is  required  should  be  returned  as  ac- 
complished.^ It  is  not  sufficient  in  such  case  to  say  that  the 
writ  has  been  served  on  a  garnishee,  naming  the  person  in 
possession.- 

The  attachment  of  real  estate  is  not  proven  by  the  state- 
ment of  a  deputy  officer  that  notice  of  attachment  has  been 
lodged  in  the  office  of  the  clerk  of  the  court.^ 

§  325.  Date. —  Personalty  was  attached  on  one  day  and 
realty  on  another.  Lists  of  property  were  appended  showing 
the  respective  dates,  and  the  return  was  held  sufficient.^  When 
the  officer  has  served  several  attachments  and  made  levies  in 
each  on  the  same  property,  he  should  report  in  each  case  that  he 
.has  seized  that  property  under  the  writ  issued  therein,-^  giving 
the  exact  dates  of  each  seizure.  Where  the  law  requires  .wit- 
nesses to  the  levy,  their  names  must  appear  in  the  return,^  for 
where  there  are  competing  attachments,  and  where  other  evi- 
dence than  the  marshal's  or  sheriff's  report  is  allowable,  the 
insertion  of  the  witnesses'  names  is  a  means  of  avoiding  much 
possible  contention.  In  such  case,  where  fractions  of  a  day 
are  noticed,  the  exact  date  of  the  levy,  even  to  the  minute, 
becomes  of  vital  importance.  If  two  attachments  are  in  com- 
petition, and  the  return  of  one  shows  execution  at  noon  while 
that  of  the  other  specifies  the  same  day  but  no  hour,  it  has 
been  held  that  the  first  will  be  marshaled  as  the  hig-her  in  rank.^ 

A  return  being  accurate  as  to  the  time  of  the  levy  but  in- 
definite as  to  that  of  the  summons,  the  presumption  has  been 

.  1  People's   Bank   v.  "West,  67  Miss.  ■*  Brown  v.  Elmendorf  (Tex.  App.), 

729 ;  Page  v.  Generes,  6  La.  Ann.  551.  25  S.  W.  145. 

2  Bryan  r.  Trout,  90  Pa.  St.  492 ;  5  Violet  v.  Tyler,  2  Cr.  C.  C.  200.  But 
Lake  Shore,  etc.  R.  R.  Co.  v.  Hunt,  39  eomjxire  Connolly  v,  Edgerton,  23 
Mich.   469;    Hayes    v.    Gillispie,    11  Neb.  82. 

Casey,  155  ;  Anderson  v.  Scott,  2  Mo.  6  Cabeen  v.  Douglass,  1  Mo.  336.  See 

15 ;  Sterrett  v.  Howarth,  76  Pa.  St.  Morgan  r.  Johnson,  15  Tex.  568. 

438.  7  Fairfield    v.  Paine,  23    Me.  498; 

3  Hodgman  v.  Barker,  60  Hun,  156.  Brainerd  v  Bushnell,  11  Ct.  16. 


236  EETUKN    AFTER    DIRECT    ATTACHMENT.  [§  326. 

made  that  the  summons  -was  served  on  the  same  day  that  the 
property  was  attached.' 

It  has  been  held  that  an  attachment  shoukl  not  be  dissolved 
because  the  sheriff  indorsed  on  the  summons  the  date  of  its 
issue  as  that  of  its  service,  when  in  fact  the  service  was  made 
on  the  dav  following.- 

§326.  When  returned. —  The  return  may  be  made  at  any 
hour  of  the  return  day.^  It  may  be  made  on  any  day  while 
the  writ  is  alive,  but  not  before  its  creation  or  after  it  has  ex- 
pired. If  the  date  of  the  writ  is  later  than  that  of  the  offi- 
cer's return,  the  latter  is  premature  and  therefore  void.'*  If 
the  return  day  has  expired,  no  return  can  be  legally  made.^ 

A  return  is  unnecessary  if  the  case  is  settled  before  the  time 
for  return.^  If  it  is  made  returnable  at  a  wrong  time,  objec- 
tion to  it  is  waived  by  the  defendant's  general  appearance.^ 
If  it  is  entered  after  the  return  day  by  consent  of  the  defend- 
ant, it  is  held  that  sureties  of  his  dissolution  bond  are  not 
thereby  discharged.^  And  it  has  been  held  that  a  return 
made  a  day  after  the  return  day  does  not  release  the  lieu.". 
And  when  the  precept  was  not  returned  on  or  before  the  re- 
turn day  and  the  case  was  removed  to  a  federal  court,  the 
attachment  was  not  dissolved  on  that  ground. '"^ 

The  original  writ,  with  the  certificate  of  the  sheriff  indorsed 
on  it  showing  that  the  writ  was  executed,  was  admitted  in  evi- 
dence on  a  trial  of  title  to  land  derived  from  the  attachment 

1  Talcott  V.  Rozenberg,  8  Abb.  Pr.  suit  as  supplemental  to  it  Chase  v. 
(N.  S.)  287.  In  this  case  it  seems  that  Hill,  13  Wis.  222.  See  Reed  v.  Fer- 
tile return  did  not  show  that  the  serv-    kins,  14  Ala.  231. 

ice  was   made  within  the  time  re-  *  Berry  r.  Spear,  13  Me.  187. 

quired  by  law.  Oixlinarily  the  return  ^  Russ  v.  Butterfield,  6  Cush.  242 ; 

ought  to  be  sufficient  to  show  that  Williams  v.   Babbit,    14  Gray,   141 ; 

fact.  Brown  v.  Carroll,  16  R.  L  604 ;  Kin- 

2  Cureton  v.  Dargan,  12  S.  C.  122.  caid  v.  Frog,  49  Kan.  766. 

3  People  V.  Wheeler,  7  Paige  (N.  Y.),  ^  Atwell  v.  Wigerson,  80  Wis.  424, 
433.  The  exception  is  made  in  this  Or  if  the  defendant  has  put  up  money 
case,  however,  that  if  ordered  by  the  to  save  his  property  from  levy.  Tay- 
courtto  return  the  writ  immediately,  lor  v.  Knowlton,  10  Allen,  137. 

the  officer  must  do  so.    Held  in  Wis-  "  Wheat  v.  Bower,  42  111.  App.  600. 

consin  that  under  tYie  practice  there  ^"Lee  v.  James,  150  Mass.  475. 

a  writ  of  attachment  need  not  be  re-  ^  Horton  v.  Monroe  (Mich.),  57  N. 

turned  at  any  particular  time,  but  W.  109. 

must  be  sued  out  after  the  principal  I'JNims  v.  Spurr,  138  Mass.  209. 


§§  327,  328.]  REQUISITES    OF    EETL"KN.  237 

proceedings,  though  the  writ  was  not  duly  returned  till  long 
after  judgment  in  the  attachment  case.^ 

§  327.  Where  lodged. —  The  return  should  be  lodged  wher- 
ever the  law  of  any  state  requires  it  to  be:  with  the  clerk  of 
the  court  or  the  register,  or  the  prothonotary,  etc.,  but  the  re- 
turning officer  is  not  obliged  to  present  it  personally  to  the 
receiving  officer.- 

Though  a  writ  be  issued  in  one  county  and  served  in  an- 
other, and  returned  in  the  first  county,  a  copy  must  be  filed  in 
the  second,  it  is  held.''  It  cannot  be  served  by  the  sheriff  of 
a  different  county  from  that  in  which  the  attached  property 
is  located,  though  both  counties  be  in  the  same  judicial  dis- 
trict, it  has  been  held.*  The  presumption  is  that  the  levy  was 
made  in  the  county  in  which  the  writ  was  issued  when  there 
is  nothing  pointing  to  the  contrary .^  If  the  writ  be  returned 
to  the  proper  court,  its  recital  of  another  court  has  been  held 
not  fatal.^ 

The  writ  is  usually  returnable  to  the  officer  who  issued  it, 
but  the  necessary  matter  is  that  it  be  returned  to  the  court; 
and  even  where  a  statute  directs  that  the  return  be  made  to 
the  officer  issuing  the  writ,  failure  to  follow  such  direction  is 
not  fatal  to  the  attachment,  nor  does  it  impair  the  validity  of 
the  return.     Such  a  law  is  merely  directory." 

§  328.  When  authority  must  he  shown. —  Sometimes  returns 
are  made  by  officers  who  did  not  make  the  levies,^  though  the 
practice  is  neither  general  nor  commendable. 

When  one  is  appointed  to  serve  a  writ,  and  he  is  not  a 
deputy  sheriff  or  in  any  official  capacity  by  which  he  w^ould 
be  competent  to  render  such  duty,  he  must  show  his  authority 
in  the  return  —  for  the  validity  of  his  act  depends  upon  his 
right  to  act.^     Even  if  he  is  an  officer,  ordinarily  empowered 

1  Cousins  V.  Al worth,  44  Minn.  505.  Gilbert  v.  Brown,  9  Neb.  90 ;  Hortou 

2  Kendall  v.   Irvine,   42   Me.    839;  r.  Monroe  (Mich.),  57  N.  W.  459. 
Bessey  v.  Vose,  73  id.  217;  Ritter  v.  ^  Blake  v.  Camp.,  45  Ga.  298. 
Scannell,  11  Cal.  238.  'Rodgers  v.   Bonner,  55  Barb.  9; 

3  Still  V.  Focke,  66  Tex.  715;  Rev.  Post  v.  Bird,  28  Fla.  1. 

Stat,  §  4829 ;  Ezelle  v.  Simpson,  46  8  McMeekin    v.    Johnson,   2   Dana 

Minn.  515.  (Kj-.),    459.      Held    void :     Ocley    v. 

*  Sadler  v.  Tatte,  17  Nev.  429.  Shepherd,  8  Biackf.  146. 

5  Knowles  v.  Coke  Co.,  19  Wall.  59 ;  sCurrens  v.  Ratcliffe,  9  Iowa,  309. 


23S  EETUKN    AFTER    DIKECT    ATTACHMENT.       [§§  329-331. 

to  serve  attachment,  yet  his  right  to  serve  a  particular  attach- 
ment may  be  affected  by  interest.^ 

§329.  SUj)iature. —  The  signature  of  the  officer  to  his  re- 
turn should  always  be  made,  for  reasons  apparent;  but  an 
inadvertent  omission  of  it  would  not  necessarily  invalidate 
the  return.  Of  course,  an  unsigned  return  which  he  never 
meant  to  file  would  be  of  no  avail  should  the  fact  of  its  sur- 
reptitious or  accidental  filing  be  made  to  appear;  but  the  at- 
tachment may  have  been  perfect,  though  the  written  evidence 
of  it  should  want  the  signature  of  the  oflicer.^ 

The  deputy  may  sign  if  he  served  the  writ,  but  the  sheriff 
is  presumed  to  act  through  him.  If  the  sheriff  has  seen  the 
return  and  allowed  it  to  be  filed,  he  cannot  recover  of  his 
deputy  if  it  prove  to  be  false.^  There  may  be  circumstances 
under  which  he  could ;  for  the  deputy  might  artfully  and  pur- 
posely deceive  his  principal. 

§  330.  Wlien  no  service. —  The  officer  should  show,  in  case 
no  service  has  been  made,  why  it  has  not  been  made ;  as  that 
the  defendant  could  not  be  found.*  He  should  show  why  it 
was  not  left  at  the  residence  of  the  defendant  or  at  the  place 
of  his  last  residence;^  as,  that  he  has  no  residence  in  the 
county  or  state.  It  is  important  when  the  character  of  the 
attachment  suit  is  to  be  determined.  Thouo^h  the  debtor  be 
not  personally  served,  there  may  be  a  service  legally  equiva- 
lent to  a  personal  one,  such  as  leaving  the  summons  and  writ 
at  his  domicile  with  a  person  of  proper  age.* 

§  331.  Return  to  a  second  attachment. —  When  there  has 
been  no  legal  return  made  and  no  writ  served  in  a  first  attach- 
ment, a  second  attacher  may  treat  the  first  levy  as  void.^     If 

1  Waterhouse  v.  Smith,  22  Me.  337.  6  Jq   Michigan  it  is  a   statute  re- 

Hekl  that  if  the  oiScer  is  a  party,  quirenient  that  if  the  defendant  can- 

his  return  is  only  prima  facie  evi-  not  be  fouud  in  the  county,  a  copy 

dence.  of  the  writ  must  be  left  at  his  last 

-  Gibson  v.  Park  Bank,  98  N.  Y.  87 ;  place  of  residence  or  the  return  must 

Lea  V.  Maxwell,  1  Head  (Tenn.),  365 ;  show  that  he  had  no  such  last  place 

Clymore  v.  Williams,  77  111.  618.  of  residence.     Adams  v.  Abram,  38 

3Wasson  v.  Linster,  83  N.  C.  575.  Mich.  302;  Id.  304;  Smith  v.  Curtiss. 

4  Thomas  v.  Richards,  69  Wis.  671.  id  393 ;  Nicolls  v.  Lawrence,  30  id. 
In  this  case  held  that  the  defendant,  396 ;  Town  v.  Tabor,  34  id.  265. 

by  absconding,  had  waived  service.        '  Stone  v.  Miller,  62  Barb.  430. 

5  Stone    V.   Hawkins,   56   Ct.    Ill; 
Wilkius  V.  Tourtellott,  42  Kan.  176. 


§  332.]  AMENDMENT.  ,239 

the  writ  has  been  lost  and  is  not  accounted  for  by  any  return, 
an  alfidavit  that  it  has  been  served  is  held  to  be  without 
effect ;  ^  yet  it  is  the  attachment,  and  not  the  return,  which 
establishes  the  lien.-  If  a  first  lien  has  been  duly  executed 
and  returned,  all  that  is  necessary  to  a  second  attachment  is 
that  the  writ  be  duly  served  and  returned ;  no  formal  act  of 
seizure  being  required.^  The  officer  indorses  the  matter  of 
the  return  on  the  writ ;  and  it  is  said  that  the  indorsement 
purporting  to  have  been  first  made  may  be  shown  to  have  been 
made  last.*  If  the  date  of  the  return  is  omitted  or  obscure 
it  is  presumed  to  be  subsequent  to  that  of  the  writ  itself.' 

AYhen  the  cause  of  action  must  be  debt  due,  a  writ  returned 
on  an  attachment  for  such  debt  supersedes  a  prior  one  on  at- 
tachment for  debt  not  due ;  ^  rather,  it  is  the  only  valid  attach- 
ment. 

IV.   Amendment. 

§  332.  By  tlie  officer. —  The  sheriff  or  marshal  has  full 
control  over  his  return  before  he  has  had  it  filed ;  and  after 
the  filing  he  may  be  granted  leave  to  amend  it  in  some  ])u.y- 
ticulars,^  such  as  adding  that  the  thing  attached  belongs  to 
the  defendant  or  one  or  more  of  several  defendants ;  ^  speci- 
fying particular  articles ;  ^  inserting  that  a  copy  of  the  attach- 
ment was  posted  as  required ;  ^^  substituting  the  proper  name 
of  the  court  for  the  wrong  designation ;  ^^  affixing  seal,^-  etc., 
but  he  cannot  be  permitted  to  make  out  evidence  for  himself 
when  sued  for  official  wrong-doing  by  amending  his  return 
after  it  has  been  duly  made.'^     Amendments  affecting  jurisdic- 

1  Stroner  v.  Prokop,  30  111.  App.  56.         ^  Harris  v.  Russell,  93  Ala.  59. 
Compare  Brusie  v.  Gates,  96  Cal.  265.        *  Downs  v.  Flanders,  150  Mass.  92 ; 

2  Gerdes  v.  Sears,  13  Oreg.  358.  Mason  v.  Anderson,  3  T.  B.  Mon.  293 ; 

3  Perry  v.  Sharpe,  8  Fed.   15 ;  Tur-  Anderson  v.  Scott,  2  Mo.  15 ;  Bank  of 
ner  v.  Austin,  16  Mass.  181 ;  Whittier  North  West  v.  Taylor,  16  Wis.  609. 
V.  Smith,  11  id.  211 ;  Hoy  v.  Eaton,  26        '-*  Baxter  v.  Rice,  21  Pick.  197. 

La.  Ann.  169.  lo  Wilson  v.   Ray,   T.  U.  P.  Charlt 

4  Sanger  v.  Trammell,  66  Tex.  361.     (Ga.)  109. 

5  Millett  r.  Blake,  81  Me.  531.  ii  Covington  v.  Cothran,  35  Ga.  156 ; 
^Lytle    V.    Lytle,    37     Ind.    281;     Norvell  r.  Porter,  62  Mo.  309. 

United  States  Express  Co.  v.  Lucas,       i-  Wolf  v.  Cook,  40  Fed.  432. 

36  id.  361 ;  Patrick  v.  Montader,  13       13  Hayues  v.  Knowles,  36  aiich.  407. 

Cal.  434. 


2i0  RETURN    AFTER    DIRECT    ATTACHMENT.  [§  333. 

tion  cannot  be  made  without  proceeding  contradictorily  with 
the  party  to  be  affected  by  the  change.^  To  allow  a  total 
omission  of  a  return  to  be  supplied  muic pro  tunc  is  irregular, 
and  would  be  generally  held  illegal  though  it  is  not  without 
a  precedent.'^  Ordinarily  amendment  relates  back  to  the  re- 
turn.' 

§  333.  Errors. —  AVhile  slight  errors  of  inadvertence  may 
erenerallv  be  amended,  the  neglect  to  state  the  time  of  the  at- 
tachment,  though  it  also  may  be  unintentional,  cannot  always 
be  remedied  by  amendment.^  The  whole  question  between 
creditors  competing  for  priority  turns  usually  upon  the  point 
of  time  when  one  of  the  attachments  was  executed ;  and  to 
aive  the  officer  the  right  to  amend  after  an  issue  made  be- 
tween  the  competitors  would  be  equivalent  to  giving  him  the 
decision  of  the  issue.^ 

It  would  seem  to  be  a  correct  general  ))roposition  that  an 
officer  cannot  amend  his  return  after  judgment.^     Even  dur- 
ing the  progress  of  the  trial,  if  he  wishes  to  amend  an  errone-" 
ous  return,  there  must  be  a  proper  proceeding  and  showirfg 
before  he  can  exercise  his  right  to  do  so,"  and  before  api'>eal.^ 

Slight  and  unimportant  omissions  which  may  be  readily 
supplied  by  the  sense  generally  conve3''ed  will  not  vitiate  a 
return.     Nor  will  the  insertion  of  superfluous  verbiage.** 

lid.;  Montgomery    v.   Merrill,    36  Clure  v.  Smith,   14  Colo.   297.     But 

Mich.  97 ;  Palmer  v.  Thayer,  28  Ct.  amendments  have  been  liberally  al- 

237.    See  Jeffries  r.  RudJofl,  73  la.  60.  lowed  when  the  record  showed  them 

2  Bancroft  v.  Sinclair,  12  Rich.  617.  necessary.       Dawson    v.     Moons,    4 

3  Kitchen  v.  Reiusky,  42  Miss.  427;  Mumf.  535;  Bullitt  v.  Winston,  1  id. 
Smith  V.  Leavitts,  10  Ala.  92;  Lay-  269;  Malone  v.  Samuel,  3  A.  K.  Mar- 
man  V.  Beam,  6  Whart.  181.  shall,  350;  Gay  v.  Caldwell,  Hardin. 

^  Taylor  v.  Emery,  16  N.  H.  359.  63 ;  Milliken   v.   Bailey,  61   Me.  316  : 

5  Braley  v.  French,  28  Vt.  546.  Baird  v.  Rice,  1  Call,  18 ;  Emerson  v. 

6  But  in  Odom  v.  Shackelford,  44  Upton.  9  Pick.  167 ;  Haven  r.  Snow, 
Ala.  331,  it  was  held  that  the  sheriflf's  14  Pick.  28 ;  Hutchins  v.  Brown,  4 
return  of  an  attachment  sued  out  by  Har.  &  ;McH.  498. 

the  landlord  against  the  crop  of  his  ^  Braiuard    v.    Burton,   5    Vt    97 ; 

tenant  may  be  amended  after  judg-  Harper  v.  Miller,  4  Ired.  34. 

ment  so  as  to  show  that  the  crop  9  Land  returned  as  "  supposed "  to 

levied  on  had  been  grown  on  the  belong  to  the  defendant  was  deemed 

rented  laud.     -S'ee  Cousins  v.  Alworth,  sufficiently  designated  as  to  owner- 

44  Minn.  505;  Hughes  v.    Lapice,  5  ship  when    the    fact  was   that    he 

Sm.  &  M.  451.  owned  it.     Bannister  v.  Higgiuson, 

^  Sauford  v.  Pond,  37  Ct  588 ;  Mc-  14  Me.  73.    Stating  that  the  attach- 


§§  334,  335.]  AMENDMENT.  241 

§334.  Presumiytion  favors  return. —  A  return  may  have 
erroneous  words  corrected,  and  omissions  supplied,  upon  rea- 
sonable presumption.  In  the  absence  of  proof  to  the  contrary, 
the  officer  will  be  presumed  to  have  done  his  duty,  in  matters 
for  the  return  of  which  there  is  no  prescribed  form.^  When 
goods  are  reported  as  attached,  with  an  omission  of  the  value, 
the  presumption  that  they  are  sufficient  to  meet  the  demand 
has  been  made.- 

"Where  details  are  not  statutorily  exacted,  an  officer  may 
return  that  he  has  attached  certain  described  property  at  a 
certain  time,  in  conformity  to  the  writ ;  and  such  statement 
is  deemed  equivalent  to  a  return  of  all  the  facts  done  which 
are  required  to  constitute  a  valid  attachment;  and,  in  the 
absence  of  fraud,  it  is  sufficient  and  conclusive  of  the  fact  of 
the  attachment ;  ^  but  whatever  details  a  statute  exacts  should 
be  stated  and  not  left  to  be  presumed.  The  general  return 
"duly  made,"  etc.,  is  presumably  correct,  but  it  may  be  con- 
troverted.^ Reasonable  intendments  are  made  in  favor  of  an 
officer's  return.^ 

§  335.  The  presumption  that  an  attaching  officer  has  done 
his  duty  will  not  avail  to  overcome  the  omission  of  essential 
facts  ;^  nor  can  unintelligible  statements  be  supplied  by  con- 
jecture.' There  is  another  presumption  that  may  be  invoked 
against  an  officer  who  has  made  an  inadequate  statement  of 
the  facts  attending  the  levy:  the  presumption  that  he  has 

ment  was  made  "  at  the  risk  of  the  Miss.  (4  S.  &  M.)  579,  "  executed  "  was 

plaintiff "  is  mere  surplusage,  and  of  presumed    to    mean  regularly   exe- 

no  legal  effect  iu  protecting  the  of-  cuted  in  legal  form, 

ficer.      Lovejoy  v.  Hutchins,  23  Me.  2  Childs  v.  Ham,  23  Me.  74. 

272.  SLathrop    v.  Blake,    23  N.   H.   (3 

1  Fears  v.  Thompson,  82  Ala.  294 ;  Fost.)  46 ;  Prather  v.  Chase,  3  Brews. 

Classon  v.  Morrison.  47  N.  H.  482 ;  (Pa.)  206 ;  j\Iorey  v.  Hoyt,  62  Ct.  542. 

Miller  v.  Fay,  40  Wis.  633 ;  Lewis  v.  *  Porter  v.  Pico,  55  Cal.  165 ;  An- 

Quinker,  2  Met.  (Ky.)  284.     Omission  derson  v.  Graff,  41  Md.  601 ;  Crisman 

to  state  that  a  copy  of  the  attach-  v.  Swisher,  4  Dutch.  149 ;  Baldwin  v. 

ment  was  posted  in  a  "  conspicuous  Conger,  9  Sm.  &  M.  516.     Held  in- 

place"  on  a  lot  seized  (there  being  sufficient:  Benjamin  v.  Shea,  83  la. 

no  tenant  upon  whom  to  serve  the  392. 

writ)  was  held  cured  by  such  pre-  ^Di-ake  v.  Mooney,  31  Vt.  619. 

sumption,  when  the  officer  had  re-  *>  Robertson  v.  Hoge,  83  Va.  124. 

turned  that  he  had  posted  it  on  the  "^  Hathaway  v.   Larrabee,   27    Me. 

premises.     In  Redus  v.  Woffard,   12  449. 
16 


242  EETUEN    AFTEK    DIRECT    ATTACHMENT.  [§  33G. 

stated  all  the  facts.  It  is  his  duty  to  indorse  upon  the  writ 
what  he  did  in  serving  it ;  and  he  will  be  presumed  to  have 
done  so.^  Important  facts  thus  omitted  cannot  be  assumed 
to  have  occurred. 

Errors  or  omissions  in  a  return,  which  the  affidavit  or  other 
part  of  the  record  full}'-  cures  (when  not  violative  of  some 
statute  requirement),  ought  not  to  militate  against  the  plaintiff 
so  far  as  to  defeat  the  attachment.-  Generall}^,  amendment 
of  return  should  not  be  allowed  to  the  injury  of  interveners.^ 

§  336.  When  conclusive. —  Even  though  the  officer  ma}''  not 
have  actually  seized  the  goods  of  a  third  person  by  any  ma- 
nipulation or  disturbance  of  them,  putting  a  keeper  over  them, 
or  exercising  any  act  of  possession  whatever  in  regard  to 
them,  yet  if  he  makes  a  return  upon  the  writ  that  he  has 
seized  them,  the  real  owner  may  be  injured  in  his  credit,  put 
to  trouble  and  expense  by  the  wrongful  return,  or  otherwise 
injured,  so  as  to  have  a  right  of  action  against  the  officer;  he 
may  have  such  right  though  there  has  been  no  tortious  tak- 
ing.^ 

So  the  attaching  creditor  may  be  injured  by  the  action  or 
non-action  of  the  officer;  and,  in  a  suit  by  him  for  repair  of 
the  wrong,  the  return  in  the  attachment  suit  is  conclusive 
upon  the  sheriff  and  his  representatives.^  If,  however,  the 
return  should  contain  the  statement  that  the  attachment  was 
made  under  the  instructions  and  "  at  the  risk  of  the  plaintiff," 

1  Sharp  V.    Baird,   43   Cal.    577,  in  3  childs  v.   Barrows,   9   Met   413; 

which    the  levy   was    held   invalid,  Williams  v.  Brackett,  8  Mass.  240 ; 

since  the  writ  did  not  state  an  essen-  Bowman  v.  Stark,  6  N.  H.  459 ;  Eve- 

tial  fact.    Instead  of  presuming  that  leth  v.  Little,  16  Me.  374 ;  Oilman  v. 

the    sheriff  had  done  his  duty,  the  Stetson,  id.  124;  Means  v.  Osgood,  7 

court  assumed  that  no  copy  of  the  id.  146. 

attachment  had  been   posted  as  re-  *Gibbs    n    Chase,    10    Mass.  128; 

quired  because  not  set  forth  in  the  M^rston  v.  Baldwin,  17  id.  606 ;  Morse 

return  ;  and,  under  the  circumstances  v.   Hurd,  17  N.   H.    246 ;    Paxton  v. 

of   that  case,  it  could  hardly  have  Steckel,  2  Pa.  St.  93 ;  Miller  v.  Baker, 

held  otherwise.  1   Met.  27.    See  Galloway  v.  Bird,  4 

2Bannisterf.  Higginson,  15  Me.  73;  Bing.  299;  Meany  t\  Head,  1  Mason, 

Miller  v.  Fay,  40  Wis.  633;  Lovelady  319;  Pangburn  v.  Patridge,  7  Johns. 

V.  Harkins,  6  Smedes  &  M.  412 ;  Clan-  140. 

ton  V.  Laird,  12  id.  568 ;  Nash  v.  JMal-  5  state  v.  Penner,  27  Minn.  269. 
lory,  17  Mich.  232;  Kelly  v.  Oilman, 
29  N.  H.  385. 


§  337.]  AMENDMENT.  243 

that  would  not  be  conclusive  against  the  latter,  because  such 
assertion  is  not  required  by  law  and  therefore  forms  no  proper 
part  of  the  official  paper,  as  the  officer  cannot  thus  make  incon- 
trovertible evidence  for  himself  to  be  used  in  case  of  a  suit 
against  him;  but  the /ac^  that  the  plaintiff  instructed  him 
and  took  the  risk  of  the  attachment,  when  properly  proved  at 
the  right  time,  would  shield  the  officer  from  a  suit  by  the 
plaintiff,  and  enable  him  to  recover  of  the  plaintiff  in  case 
damages  should  be  awarded  in  a  suit  by  third  persons  against 
such  officer.^ 

§  337.  Not  contradicted  hy  parol  evidence.— The  general 
rule  is  that  a  sheriff's  return,  upon  attachment  and  similar 
writs,  cannot  be  contradicted  by  parol  evidence.  It  isp7'ima 
facie  true.^  And  ordinarily  it  cannot  be  thus  extended  or  ex- 
plained. If  the  return  is  false  and  injurious,  the  injured  party 
has  his  remedy  by  action  against  the  officer  for  a  false  return, 
but  the  court  will  receive  the  official  report  in  the  case  in 
which  it  is  made  as  purporting  absolute  verity.^  The  officer 
has  entire  control  over  the  return  until  it  has  been  filed;  the 
court  cannot  dictate  to  him  what  facts  to  report ;  and  after 
the  filing  neither  the  officer  at  his  own  volition,  nor  the 
court,  by  directing  the  officer,  can  make  any  change  that 
would  affect  the  vested  right  of  any  party.  The  officer  him- 
self must  abide  his  action,  though  to  his  injury,*  unless  he 


1  Lovejoy  v.  Hutchins,  23  Me.  272 
Lesher  v.  Getman,  30  Minn.  321 
Nelson  v.  Cook,  17  111.  443 ;  Gower  v. 


mead,  127 ;  French  v.  Stanley,  21  Me. 

512;    Mentz  v.   Hamman,  5  Whart. 

150;  Haynes  v.  Small.  22  Me.  14; 
Emery,  18  Me.  79 ;  Sanders  v.  Hamil-  Sample  v.  Coulson,  9  Watts  &  Serg. 
ton,  3  Dana  (Ky.),  550 ;  Humphreys  v.  62 ;  Paxton  v.  Steckel,  2  Pa.  St,  93 ; 
Pratt,  2  Dow  &  Clark,  288,  Clarke  v.  Gary,  11  Ala,  98;  Rowell  v. 

2  Hammond  v.  Starr,  79  Cal,  556 ;  Klein,  44  Ind.  290 ;  Splahn  v.  Gilles- 
Morse  v.  Smith,  47  N.  H.  474 :  Smith  pie,  48  Ind.  397.  Compare  Tuck  v. 
V.  Smith,  24  Me.  555 ;  Chapline  v.  Rob-    Manning,  63  Hun,  345. 

ertson,  44  Ark.  202 ;  Kramer  v.  Wet-  *  Haynes  v.  Small,  22  Me.  14 ;  Saw- 
tendorff  (Pa.  St.),  10  A.  892 ;  Hensley  yer  v.  Curtis,  2  Ashmead^l27,  When 
V.  Rose,  76  Ala.  373.  the  officer  returned  that  he  had  left 

3  Kendall  v.  White,  1  Shep.  245;  a  copy  of  the  attachment  writ,  etc., 
Haynes  v.  Small,  9  id,  14;  Baker  v.  at  the  defendant's  place  of  abode, 
McDuffie,  23  Wend,  289 ;  Denny  v.  the  return  was  held  to  be  open  to 
Willard,  11  Pick,  519 ;  McBee  v.  The  contradiction.  Buckingham  v.  Os- 
State,  1  Meigs,  122 ;  Brown  v.  Davis,  borne,  44  Ct.  133.  So,  also,  when  he 
9  N.  H.  76 ;  Chadbourne  v.  Sumner,  returned  that  he  had  made  the  re- 
16  id.  129;  Sawyer  v.  Curtis,  2  Ash-    quired  certificate  to  the  registry  of 


24i  EETURN    AFTER    DIRECT   ATTACHMENT.       [§§  338,  339. 

have  leave  of  court  to  amend.     He  has  been  allowed  to  amend 
after  his  terra  of  office  had  expired.^ 

§  338.  The  inviolability  of  the  return  is  confined  to  itself  as 
an  official  document.  The  facts  which  it  states  may  be  con- 
troverted as  facts  stated  by  one  of  the  parties  but  not  as  con- 
stituting the  return.^  For  illustration :  the  sheriff  may  report 
that  he  has  attached  a  farm  as  the  property  of  the  defendant, 
or  that  the  farm  which  he  has  attached  is  the  property  of  the 
defendant.  This  cannot  be  contradicted;  that  is,  the  fact  that 
he  has  so  attached  it  cannot  be.  But  an  intervenor  may  in- 
terplead and  allege  that  the  property  attached  belongs  to  him 
and  not  to  the  defendant.  Of  course  the  return  cannot  pos- 
sibly preclude  parties  from  asserting  facts  just  the  opposite 
of  what  it  may  have  stated,  yet  this  would  not  be  what  is 
meant  by  contradicting  the  return.  A  purchaser  at  a  sale  is 
not  protected  by  the  sheriff's  return  that  the  attached  prop- 
erty belonged  to  the  defendant,  if  the  records  show  that  it 
did  not,  and  it  therefore  was  not  the  res.^ 

Y.  Return  "Kot  Found"  —  Order  of  Publication. 

§  339,  Order. —  When  the  sheriff  makes  return  that  the 
debtor  to  whom  summons  was  addressed  cannot  be  found,  the 
court  issues  an  order  for  constructive  notice  by  publication,* 

deeds.     Dutton  v.  Simmons,  65  Me.  land,  51  id.  321 ;  Bacon  v.  Leonard,  4 

583.     Sheriff  may  piove  facts  dehors  Pick.  277;  Anderson  v.  Scott,  2  Mo. 

their  returns,  when  not  inconsistent  15 ;  Mason  v.  Anderson,  3  Mon.  294  ; 

therewith.     Pierce  v.   Strickland,    2  Clay  v.    Neilson,    5    Randolph,   590. 

Story,   292;    Evans  v.    Davis,    3    B.  See   Crawford    v.  Nolan,  72  la.   078. 

Mon.  344 ;  Williams  u  Cheesebrough,  Compare  Charles  City  Plow  Co.   v. 

4  Ct.  356 ;  Denton  v.  Livingston,  9  Jones,  71  id.  234. 

Johns.  96.  *  The  order  to  make  publication  is 

1  Jeffreis  v.  Rudloflf,  73  la.  60.  granted  on  the  application  of  the 
Contra,  Cole  v.  Dugger,  41  Miss.  557.  plaintiff.     If  the    original    affidavit 

2  Charles  City,  etc.  Co.  i\  Jones,  71  contains  all  that  is  necessary,  no 
la.  234.        *  further    oath   is  required.     Bray   v. 

3  Merritt  v.  Miller,  13  Vt  416 ;  Marshall,  75  Mo.  327 ;  Avery  v.  Good. 
Fullam  r.  Stearns.  30  id.  444 ;  Robert-  114  id.  290;  Bm-uett  v.  McCluey. 
son  u  Kinkhead,  26  Wis.  560 ;  Repine  92  id.  230;  Miller  v.  Eastman,  27 
V.  McPhersou,  2  Kan.  340 ;  Peltou  r.  Neb.  408.  Affidavit  may  be  made 
Platuer,  13  O.  209 ;  Tiffany  v.  Glover,  by  an  attorney.  Weaver  v.  Roberts, 
3  G.  Greene,  387 ;  Bannister  v.  Hig-  84  N.  C.  493.  It  must  show  that  de- 
ginson,  15  Me.  73 ;  Lincoln  v.  Strick-  fendant  cannot  be  found  in  the  state. 


§  3i0.]  RETURN    "  NOT   FOUND."  245 

unless  there  has  been  service  at  his  domicile  on  an  inmate  of 
legal  qualification  to  receive  it.^  The  order,  the  compliance 
with  it,  and  the  return,  must  all  conform  to  the  governing 
statute.  The  publication  should  follow  the  order  within  rea- 
sonable time  if  no  time  is  fixed  by  the  court.^  Where  the 
statute  designates  no  form  for  the  order,  but  merely  prescribes 
that  an  order  of  publication  be  made,  the  court  will  fashion 
its  own  form.  The  substantial  thing  for  the  order  to  contain 
is  that  such  notice  be  given  to  the  defendant  named  in  the 
plaintiff's  petition  as  will  inform  him  that  the  suit  is  pending 
against  him,  and  that  property  of  his  is  seized  or  about  to 
be,  so  that  he  may  have  knowledge  of  it  and  his  opportunity 
to  defend,  and  have  his  day  in  court.  The  order  is  not  issu- 
able until  the  time  for  personal  service  has  expired.^  The  order 
is  held  to  be  complied  with  if  but  one  of  two  defendants 
jointly  liable  has  been  notified  by  publication.* 

§  340.  Such  order  may  be  published  as  the  notice,  if  it  is 
full  enough  to  convey  notice,  and  is  addressed  to  the  defend- 
ant by  the  sheriff.  The  form  of  the  notice,  written  out  by  the 
sheriff,  must  be  in  compliance  with  the  judge's  order  and  with 
the  statute.  "Where  no  special  form  of  Avords  is  prescribed  by 
statute,  it  will  be  sufficient  if  the  defendant  is  addressed 
through  the  notice,  and  told  of  the  suit  pending  against  him, 
of  the  attachment  of  his  property  or  the  order  for  its  attach- 
ment and  of  the  time  within  which  he  must  appear,  the  court, 
the  name  of  the  plaintiff,  the  demand,  the  grounds,  etc.  Non- 
residents maybe  notified  by  letter  addressed  to  them  through 
the  mail ;  but  they  cannot  be  served  thus.^ 

Faulk  V.  Smith,  id.  501.     See  Coch-  Brown  v.  Williams,  39  id.  756 ;  Town 

rane  v.  Johnson,  95  Mich.  67.     A  re-  v.  Tabor,  34  id.  262 ;  Withington  v. 

turn :    "  unable  to   find  the  defend-  Southworth,  26  id.  382. 

ant"  has  been  held  equal  to:  "cannot  ^Yerkes  v.   McFadden  (N.  Y.),  36 

be  found,"  Horton  v.  Monroe  (Mich.),  N.  E.  7,  distinguifilnng  Statts  v.  Bris- 

59  N.  W.  109 ;  Hitchcock  v.  -Halin,  60  tow,   73  N.   Y.    264.     See  Smith    v. 

Mich.  459 ;  Howell's  Stat.,  §  8003.  Orser,  42  id.  132. 

1  Bell  V.  Gaylord  (N.  M.),  27  P.  494 ;  5  Richmond  v.  Brookings,  48  Fed. 

Spiegelberg  v.  Sullivan,  1  N.  M.  575.  241 ;  Rhode  Island,  etc.   v.  Keeney,  1 

2Bacher  v.  Shawhan,  41  Ohio  St.  N.  D.  411:  Galpin  v.  Page,  18  Wall. 

271;    Cummings  v.   Tabor,  61   Wis.  350,369;  Morse  v.  Presby,  25  N.  H. 

185.  302 ;  McMinn  v.  Whelan,  27  Cal.  300 ; 

3  Hubbell  V.  Rhinesmith,  85  Mich.  Market  N.  Bank  v.  Pac.  N.  Bank,  89 

30 ;    Caton    v.    Rupert,  60    id.    318 ;  N.  Y.  397 ;  Wessels  v.  Boettcher,  69 


246  RETURN    AFTER    DIRECT    ATTACHMENT.  '    [§  341. 

It  cannot  be  laid  clo\vn,  as  a  general  rule,  that  the  notice 
must  describe  the  property  attached,^  as  in  case  of  proceedings 
against  a  thing,  with  general  notice,  when  only  the  thing  is 
impleaded,  and  when  the  notice  is  addressed  to  all  persons 
alike;  for,  in  attachment  proceedings,  which  are  personal  in 
form,  the  notice  is  given  to  the  person  or  persons  named  in 
the  petition  as  the  defendant,  that  he  may  make  appearance 
and  have  the  suit  go  on  mainly  as  a  personal  one,  and  thus 
render  particular  description  unnecessary.  But  sometimes 
there  may  be  the  reason  for  absence  of  description,  that  the 
notice  is  published  when  summons  has  failed  to  be  served,  and 
when  nothing  already  may  have  been  attached.  All  that  the 
absent  debtor  can  be  told  in  such  case  is  that  property  of  his 
is  to  be  attached.-  When  it  is  already  attached  (which  is 
usually  required  before  publication),  its  brief  description  in 
the  advertisement  would  not  only  be  proper  but  highly  com- 
mendable, even  where  the  statute  does  not  require  it." 

When  the  law  merely  requires  notice  of  the  suit  to  be  given 
to  the  defendant,  without  any  further  statutory  direction,  it  is 
still  necessary  that  the  notice  should  show  all  that  is  requisite 
to  enable  the  defendant  to  know  who  is  suing  and  on  what 
demand ;  to  know  that  his  projierty  is  attached  or  to  be  at- 
tached, and  to  know  within  what  time  he  is  required  to  make 
appearance. 

§  341.  Contents. —  The  publication  ought  to  be  as  full  as  the 
unserved  writ  and  summons,  at  least;  it  ought  to  convey  to 
the  defendant  as  much  knowledge  of  what  is  being  done 
against  him  and  his  property  as  he  would  have  if  within  the 

Hun,  306.     In  Wisconsin,  where  no-  id.  313 ;  Keeler  v.  Keeler,  24  id.  533 

tification  by  letter  beyond  the  ju-  Weatherbee  r.  Weather  bee,  20  id.  500 

risdiction  is  called  "  personal  service "  Fladland  v.   Delaplaine,  19  id.  459 

in    several  decisions,  the   courts   do  Pollard  v.  Wegener,  13  id.  569. 

not    give    it    the    effect    of  service  i  Core  v.  Oil  Land  Co.,  40  Ohio  St 

upon    defects    of  proceedings,    and  636. 

hold  that  the  statute  authorizing  the  -Harris  r.  Grodner,  42  Mo.  159; 
letters  must  be  strictly  construed.  Grebe  v.  Jones,  15  Neb.  312 ;  Warren 
Beau  pre  v.  Brighara,  79  Wis.  436,  v.  Dick,  17  id.  241 ;  Tufts  v.  Volken- 
441-3;  Witt  V.  Meyer,  69  id.  595;  ing.  51  Mo.  App.  7. 
Manning  v.  Head3%64  id.  630;  Stuntz  *  Not  required  as  to  personal  prop- 
V.  Tanner,  61  id.  348;  Cummings  i\  ertjMn  Kansas.  Beckwith  v.  Doug- 
Tabor,  61  id.  185,  191 ;  Pier  v.  Armory,  las,  25  Kan.  229;  Race  v.  Maloney, 
40  id.  571 ;  Likens  v.  McCormick,  39  31  id.  31. 


I 


§§  342,  343.]  PUBLICATION    NOTICE.  247 

jurisdiction  and  there  served  with  the  writ  and  summons. 
"Wherever,  in  whatever  part  of  the  world,  the  publication  may 
strike  his  eye,  he  ought  to  be  made  as  fully  acquainted  with 
the  suit  as  he  would  be  if  within  hearing  of  a  proclamation 
calling  him  to  court. ^  And  the  publication  must  describe  the 
property  attached  when  the  statute  expressly  or  impliedly 
requires  it,  as  it  usually  does  when  land  is  attached,^ 

§  342.  Invitation. —  Summons  is  a  command :  publication 
notice  is  an  invitation;  summons  brings  the  defendant  under 
the  jurisdiction  of  the  court :  publication  offers  him  the  op- 
portunity of  voluntarily  coming  under  it;  summons  is  itself 
a  writ:  publication  is  a  printed  proclamation ;  summons  gives 
jurisdiction  over  the  person  and  completes  it  over  attached 
property:  publication  completes  jurisdiction  over  the  attached 
property  but  gives  none  over  the  person  of  the  debtor,  as 
will  be  shown  in  the  chapter  on  jurisdiction. 

YI.  Publication  I^otice.^ 

§  343.  Constructive  service. —  ISTotice  by  publication  is  not 
constructive  service.  Notwithstanding  loose  expressions  con- 
cerning "service  of  process  by  publication,"  it  is  evident  that 
no  one  can  be  served  so  as  to  render  him  personally  amenable 
to  the  court  and  liable  to  a  personal  judgment  by  a  mere  in- 
vitation to  appear,  claim  and  defend,  published  in  the  news- 
papers. Constructive  service  —  such  as  leaving  the  summons 
at  the  domicile  of  the  defendant  with  an  inmate  of  competent 
age  to  receive  it  —  is  as  good  in  law  as  actual,  personal  serv- 
ice, and  the  summoned  party  can  disregard  it  only  at  his  peril. 
Such  constructive  service  upon  a  witness  or  a  juror  would  be 

1  Gilliland  v.  Cullem,  6  Lea  (Tenn.),  sesses  no  power  to  render  judgment 

52L     Publication  is  not  fatally  de-  against  him  and  to  order  the  sale  of 

fective  for  failing  to  state  specifically  his  property  to  satisfy  the  same,  un- 

that  an  order  will  be  entered  for  the  less  publication  has  been   made  as 

sale  of  property  attached.     Rapp  v.  required    by    law,    and    the    notice 

Kyle,  26  Kan.  89.  should  contain  a  description  of  the 


-Cackley  v.  Smith,  38  Kan.  450 
Cohan    v.    Trowbridge,    6    id.    385 
Westcott    V.    Archer,    13  Neb.    345 
"When  attachment  is  levied  on  the    sharply  and  justly  criticised, 
land  of  a  non-resident  and  summons        ^gg  G06-614. 
is  not  made  on  him,  the  court  pos- 


property  attached."  Anderson  v.  Co- 
burn,  37  Wis.  558,  is  approved,  and 
Paine  v.  Mooreland,  15  Ohio,  435,  is 


248  EETUEN    AFTER   DIRECT    ATTACHMENT.  [§  344. 

sufficient  basis  for  a  subsequent  attachment  of  his  body  should 
he  treat  it  with  contumacy  and  contempt.  Such  a  construc- 
tive service  would  authorize  a  personal  judgment  against  a 
defendant  who  should  commit  default,  whether  any  property 
was  attached  or  not.  No  such  results  follow  publication  no- 
tice. No  such  results  can  follow  it,  though  the  statute  should 
use  the  term  "constructiv^e  service,"  meaning  merely  notice 
by  publication  when  effort  to  make  any  service  at  all,  actual 
or  constructive,  has  failed.  To  treat  such  notice  as  service  is 
contrary  to  the  common  law.^ 

Those  who  think  service  may  be  effected  by  publication  find 
difficulty  when  the  defendant  is  beyond  the  territorial  juris- 
diction ;  but  no  obstacle  is  encountered  for  that  reason  when 
the  publication  is  merel}''  to  notify  the  owner  of  attached 
property  that  he  may  have  an  opportunity^  to  appear  volun- 
tarily. No  rule  of  the  common  law  is  violated,  in  letter  or  in 
spirit,  by  such  information  given  to  one  the  be3^ond  the  terri- 
torial jurisdiction  or  secreted  within  it  so  as  not  to  be  person- 
ally found  and  served,  or  without  domicile  within  it  so  as  to 
be  constructively  served  with  summons.- 

§  344.  JDay  in  court. —  In  the  prevalent  system  of  attach- 
ment now  practiced  in  this  country,  the  suit  is  not  against 
any  person  when  no  person  is  served  or  is  in  court  without 
service ;  it  is  in  rem,  and  opportunity  must  be  given  to  him 
whose  interest  is  sought  to  be  divested  by  the  judgment,  or 
the  whole  proceeding  is  a  nullity.  Cases  seemingly  to  the  con- 
trary will  be  found  —  those  in  which  attachment  was  to  com- 
pel appearance  by  distraint  —  not  a  suit  to  create  a  lien  and 
mature  it  by  judgment  final  and  retroactive;  or  they  will  be 
found  grounded  in  error  superinduced  by  the  common  failure 
to  distinguish  between  the  two  widel}'"  different  theories  of 
attachment.' 

1  Boyland  v.  Boyland,  18  111.  552 ;  gel  v.   Loomis  (Neb.),   50  N.  W.  44. 

Hallett  V.  Righters,  13  How.  Pr.  43 ;  And  one  holding  that  a  debtor  merely 

Brownfield  v.  Dyer,  7  Bush,  505.    See  notified  by    publication  is  in    court 

case   recognizing   "  personal  service  "  for  all  purposes  of  litigating  the 

without  the  state:"     United  Verde  causes  of  action    contained  in    the 

Copper  Co.  v.  Tritle,  20    Abb.  New  petition :"  Bodwellu.Heaton,  40  Kan. 

Cases,  57.     And  one  treating  of  "  con-  36. 

structive  service  based  on  the  attach-  -  Hahu  v.  Kelly,  24  Cal.  417. 

ment  of  defendant's  propertj^ :  "  Na-  ^  Formerly  this  difference  was  not 


§§  345,  346.]  PUBLICATION    NOTICE.  249 

§  345.  "When  the  attachment  suit,  though  no.:ninally  in  per- 
■•<onam,  is  effectually  in  rem,  and  summons  has  been  returned 
unserved,  the  publication  of  notice  is  required  by  the  statutes 
establishing  the  present  prevailing  system  of  attachment ;  and 
the  fact  that  statutes  require  it  removes  the  presumption  that 
there  is  notice  by  seizure.  JSTotice  must  be  given  since  it  is 
statutory.  Silence  in  the  statute  on  the  subject  would  not 
authorize  procedure  without  it,^  it  would  not  justifj?^  the  pre- 
sumption that  seizure  gave  notice,  because  the  extraordinary 
])rocedure  by  which  a  lien  is  created  to  secure  an  ordinary 
debt  has  no  favor  beyond  what  it  derives  from  statutory  con- 
ferment. 

If  an  absent  and  non-resident  debtor  could  be  constructively 
served  by  publication,  judgment  could  be  rendered  against 
him  personally  whether  anything  was  attached  or  not ;  but 
he  cannot  have  judgment  against  him  personally  under  such 
circumstances,^  because  publication  is  not  constructive  service. 

§  346.  Hoiv  notice  2) ul)li shed. —  The  notice  must  not  only  be 
published  as  often  as  required,^  and  in  as  many  newspapers  as 
are  designated  in  the  statute,  and  in  the  particular  ones  named 
in  the  order,  if  any  are  named,*  but,  to  comply  with  the  spirit 

always    drawn :    in  Oregon,  for  in-  that  jurisdiction  may  be    obtained 

stance,  before  the  United  States  su-  without  either  service  or  notice,  but 

preme  court  had  decided  Pennoyer  u  it  contains  its  refutation  within  it- 

Neff.    Service  by  pubHcation,  giving  self.  See  State  v.  Eddy,  10  Mont.  311 ; 

jurisdiction    to    render    a   personal  Buehler  v.  Le  Lemos,  84  Mich,  554 ; 

judgment,  was  lately  declared  to  have  How.  Stat,  §§  6841,  6845. 

been  lawful  in  Texas  before  the  adop-  i  Hollingsworth  v.  Barbour,  4  Pet 

tion  of  the  present  Revised  Statutes.  466. 

Byers  v.  Brannon  (Tex.),  19  S.  W.  -'  Pennoyer  v.  NefiF,  95  U.  S.  731,  734. 
1091 :  Harris  v.  Daugherty,  74  Tex.  1.  »  Ludwig  v.  Blum,  63  Hun,  631 ; 
Is  it  not  rather  that  the  old  statute  Young  v.  Fowler,  73  Hun,  179 ;  Union 
was,  like  the  Oregon  statute,  uiicon-  Dis.  Co.  v.  Ruser,  61  Huu,  625 ;  Core 
stitutional?  Beech  v.  Abbott,  6  Vt  v.  Oil  Co.,  40  Ohio  St  686;  McLaugh- 
586,  was  a  case  concerning  cattle  that  lin  v.  Wheeler,  1  S.  D.  497 ;  Jones  v. 
had  been  attached  to  compel  the  Warwick  (Kan.),  30  P.  115. 
owner  to  appear  and  give  bail  condi-  *  If  the  clerk  fail  to  designate  the 
tioned  that  he  would  defend  the  suit  paper  as  required  by  statute,  the  at- 
Williams  v.  Stesvart,  3  Wis.  773,  and  tachment  judgment  will  not  be  there- 
Matter  of  Clark,  3  Denio,  167,  do  not  fore  void.  Kane  v.  McCown,  55  Mo. 
sustain  the  doctrine  that  they  are  181.  But  not  publishing  w-ould  be 
frequently  cited  to  support  Paine  fatal. 
V.  Mooreland,  15  Ohio,  435,  teaches 


250  EETUEN    AFTER   DIRECT    ATTACHMENT.  [§  347. 

of  the  law,  those  who  have  the  direction  of  the  publication 
(whether  the  judge  or  the  sheriff)  should  select  the  most 
widely-read  journals  so  that  the  defendant  may  have  the  best 
chance  possible  of  seeing  the  advertisement  and  of  really  ob- 
taining notice  of  the  suit.  Sometimes  "  papers  having  the 
greatest  circulation  "  are  designated  in  the  statute,  but,  when 
they  are  not,  the  spirit  of  the  law  should  oblige  the  judicial 
or  executive  officer  controlling  the  selection  to  give  the  de- 
fendant the  best  opportunity  possible  for  having  his  day  in 
court.^  When  the  order  is  that  the  notice  appear  a  given 
number  of  weeks  in  a  paper,  the  appearances  are  counted 
rather  than  the  days.^ 

§  347.  Seizure  as  notice. —  It  will  not  do  to  avoid  the  publi- 
cation and  depend  upon  seizure  as  notice.  It  is  true  that  it 
has  often  been  said  that  seizure  is  notice ;  and,  under  the  pre- 
sumption that  every  owner  knows  when  his  property  is  in  the 
adverse  possession  of  another,  the  taking  of  it  from  an  owner 
may  be,  in  a  certain  sense,  notice  to  him  of  the  taking.  The 
presumption  has  been  repeatedly  invoked  in  libel  causes 
against  property  and  other  proceedings  in  rem  irrespective  of 
personal  owners,  in  which  the  property  only  is  impleaded.' 

The  attachment  statutes,  however,  with  great  unanimity 
(except  in  some  where  foreign  attachment  is  distinguished), 
require  that  notices  to  alleged  debtors  be  addressed  to  them 
through  the  newspapers  when  summons  has  failed  to  reach 
them.  Such  requirement  is  not  observed  by  the  act  of  attach- 
ing. It  is  the  written  and  printed  and  published  address  to 
the  person  concerned  which  the  statute  requires.  And  since 
the  entire  remedy  by  attachment  looks  to  statutory  enact- 

1  Brewer  v.   Springfield,    97   Mass.  Lane  v.  Shears,  1  Wend.  433 ;  Keat- 

153 ;  Sheldon-u  Wright,  5  N.  Y.  497 ;  ing  v.  Spink,  8  Ohio  St.  114 ;  Thomp- 

Soule  V.  Chase,  1  Rob.  (N.  Y.)  222;  son  v.   Steamboat  Morton,  2  id.  80; 

Beecher  v.  Stephens,  25  Minn.  146 ;  Stewart  v.  Board,  etc.,  25  Miss.  479 ; 

Cincinnati  v.  Bickett,  26  Ohio  St.  49 ;  New  Orleans,  etc.  v.  Ilemphil],  85  id. 

Kerr  v.  Hitt,  75  III.    51 ;  Kellogg  v.  24 ;  Scott  v.  Shearman,  2  Wm.  Black. 

Carrico,  47  Mo.  157.  977 ;  Bradstreet  v.  The  Neptune  In- 

^  Core  V.  Oil  Co.,  supra.  surance  Co.,  8  Sumner,  609 :  Schooner 

3  The  Mary,  9  Cr.  126,  144 ;  Cross  Bolina  &   Cargo,  1  Gall.  79 ;  Story's 

V.  United  States,  1  Gall.  28 ;  HoUings-  Conflict  of  Laws,  §  549 ;  1  Phillips  on 

worth  V.  Barbour,  4  Pet.  475 ;  Bos-  Ev.,  pp.  156, 198 ;  2  id.,  pp.  289  and  298, 

well's    Lessee    v.   Otis,  9  How.  336 ;  note ;  Greenl.  on  Ev.,  §  88. 
Nations  v.  Johnson,    24    How.  205 ; 


§§  348,  349.]  PUBLICATION    NOTICE.  251 

meot  for  its  right  to  be,  no  other  constructive  notice  can  be  sub- 
stituted for  the  publication.  !N"o  number  of  decisions  showing 
that  seizure,  in  a  different  class  of  cases,  has  been  deemed 
notice,  will  justify  its  substitution  for  publication  in  an  at- 
tachment case,  where  the  law  requires  that  the  defendant  be 
notified,  and  usually  designates  that  such  notice  shall  be  by 
publication  in  one  newspaper  or  more. 

§  348.  Seizure,  considered  as  notice,  is,  at  best,  only  pre- 
sumptive notice,  while  the  statutes,  in  providing  for  adver- 
tisement upon  failure  of  summons,  do  not  regard  such  pre- 
sumption.^ Attachment  laws  do  not  regard  seizure  as  any 
notice  at  all.  They  mean  what  they  say  when  they  ordain 
that  something  shall  be  published,  and  in  a  newspaper,  and  in 
a  widely-read  new^spaper;  and  that  that  something  shall  let 
the  charged  debtor  know  that  his  property  should  be  looked 
after. 

§  349.  WJien  piiMication  sufficient. —  Whether  or  not  a  pub- 
lication is  sufficient  to  complete  jurisdiction  over  property  in 
any  case  depends  upon  its  substantial  compliance  with  the 
statute  and  its  o-ivins:  the  debtor  such  notice  and  warning  that 
he  may  know"  that  he  is  sued,  his  property  exposed  to  a  writ 
of  attachment  and  his  presence  required  in  court  on  or  before 
a  specified  time.  If  the  substantials  appear,  the  court  will  not 
disregard  a  publication  or  the  return  thereon  because  of  unim- 
portant omissions  and  slight  variances  and  superfluous  addi- 
tions. The  rule  respecting  variances,  etc.  (except  where  the 
statute  makes  a  difference),  is  much  the  same  in  attachment 
suits  as  in  others  where  publication  is  resorted  to ;  and  there- 
fore others  ma}^  be  properly  consulted  in  connection  with 
attachment  suits.-    It  has  been  held  that  the  publication  no- 

1  Kern  v.  Wyatt,  89  Va.  885.  111.  125 ;  Barnes  v.  The  People,  18  id. 

2  Goodman  v.  Niblack,  102  U.  S.  52;  Vairin  u  Edmonson,  10  id.  270; 
556;  Early  v.  Doe,  16  How.  611;  Forsyth  r.  Warren,  62  id.  68;  An- 
Jackson  v.  Sprague,  1  Paine,  494;  drews  v.  Ohio  R,  R.  Co.,  14  Ind. 
Ronkendorff  v.  Taylor's  Lessee,  4  Pet.  169 ;  Morgan  v.  Woods,  33  id.  28 ; 
861 ;  Hunt  v.  Wickliflf e,  2  id.  201 ;  Harlow  v.  Becktle,  1  Blackf.  (Ind.) 
Worthington  v.  Hylyer,  4  Mass.  205 ;  287 :  Dubbs  v.  Hemken  et  al,  8  Rob. 
Bachelor  v.  Bachelor,  1  id.  256 ;  Vose  (La.)  129 ;  Parsons  v.  Paine,  26  Ark. 
V.  Handy,  2  Greenleaf,  822 ;  Lavvlin  124 ;  Muskingum  Vallej'  Turnpike  v. 
V.  Clay,  4  Littell  (Ky.),  283 ;  Pyle  v.  Ward,  18  Ohio,  120 ;  Ford  v.  Wilson, 
Craven,  id.  17 ;  Rivard  v.  Gardner,  89  Tappan  (Ohio),   235 ;  Colston   v.  Be- 


252 


EBTUKN   AFTER   DIRECT    ATTACHMENT. 


[§  350. 


tice  may  be  amended/  but  not  when  the  error  defeats  juris- 
diction. 

§  350.  Time  of  notice. —  It  is  usual  for  statutes  to  fix  some 
period  within  which  publication  must  be  made :  and  the  per- 
son to  be  notified  is  entitled  to  the  full  time.^  If  the  publica- 
tion be  postponed  till  the  expiration  of  such  period,  the 
attachment  falls.^  And  the  same  effect  follows  if  the  adver- 
tisement is  not  published  the  requisite  number  of  times  within 
the  prescribed  period.^  In  all  cases  the  order  for  publication, 
the  publication  itself,  the  proof  of  it  and  the  record-showing 
should  all  conform  substantially  to  the  statute,  not  only  with 
respect  to  the  particulars  above  mentioned  relative  to  time, 
but  also  when  some  prescribed  interval  must  elapse  between 
the  date  of  the  last  insertion  of  the  advertisement  and  the 
term  of  court/^  Indeed,  whenever  publication  is  required  by 
statute,  in  attachment  suits  or  any  other,  the  requisite  as  to 
time  must  be  observed  as  well  as  all  other  requirements,^  as 
publication  is  jurisdictional." 


rends,  1  Cro.,  Mees.  &  Ros.  833 ;  Baily 
V.  Myrick,  50  Me.  171;  Swett  v. 
Sprague,  55  id.  190;  Drew  v.  De- 
quindre,  2  Dong.  (Mich.)  93 ;  Swayze 
V.  Doe,  21  Miss.  317 ;  Bunce  v.  Reed, 
16  Barb.  351 ;  Slieldon  v.  Wright  7 
id.  45,  and  5  N.  Y.  517 ;  Olcott  v.  Rob- 
inson, 20  Barb.  149,  and  21  N.  Y.  153; 
Soule  V.  Chase,  1  Abb.  (N.  Y.)  Pr.  (N. 
S.)  48 ;  Cliamberlain  v.  Dempsey,  18 
Abb.  422;  People  v.  Gray,  10  id. 
469 ;  Matter  of  Clark,  3  Denio,  167 ; 
Sloan  uForse.  11  Mo.  126;  Durros- 
sett's  Adm'r  v.  Hale,  38  id.  346 ;  Har- 
ris r.  Grodner,  42  id.  159;  Haywood 
V.  Russell,  44  Mo.  252 ;  Moore  v.  Stan- 
ley, 51  id.  317 ;  Freeman  v.  Thomp- 
son, 53  id.  183. 

1  New  Hanover  Bank  v.  Blossom,  92 
N.  C.  695. 

-'Lowenstine  v.  Gillispie,  6  Lea, 
641;  Swett  v.  Sprague,  55  Me.  190: 


Bogart  V.  Swezy,  26  Hun,  463 ;  Hunt 
V.  Wickliflfe,  2  Pet.  201 ;  Colwell  v. 
Bank  of  Steubenville.  2  Ohio,  229; 
Haskell  v.  Bartlett,  34  Cal.  281 ;  Free- 
man V.  Thompson,  53  Mo.  183 ;  Pylev. 
Craven^,  4  Littell  (Ky.),  17 ;  Swayze 
V.  Doe,  13  Smedes  &  M.  317 ;  Saffara- 
cus  V.  Bennett,  6  How.  (Miss.)  277. 

3  Mozarietta  v.  Saenz.  58  How.  (N. 
Y.)  Pr.  505 ;  Blossom  v.  Estes,  59  id. 
381,  and  84  N.  Y.  614. 

4  Swett  V.  Sprague,  55  Me.  190; 
Dow  V.  Whitman,  36  Ala.  604 ;  Law- 
lin  V.  Clay,  4  Littell  (Ky.),  283;  Bach- 
elor V.  Bachelor,  1  Mass.  256. 

5  Andrews  v.  Ohio  R.  R.  Co.,  14  Ind. 
169 ;  Muskingum  Valley  Turnpike  v. 
Ward,  13  Ohio,  120;  Haywood  v. 
Russell,  44  Mo.  252 ;  Forsyth  v.  War- 
ren, 62  111.  68 ;  Vairin  v.  Edmonson, 
10  id.  270. 

6  Morris    v.     Hogle,    37    111.    150; 


"?  Above  cited  cases,  and  Martin  v.  v.  Williams,  91  N.  C.  483,  and  cases 

Central  Vt.  R.  Co.,  50  Hun,  347 ;  Nu-  cited   in  the  following  note.     Com- 

gent  V.  Nugent,  70  Mich.  52 ;  Steere  pare  Simmons  v.  Mo.  Pac.  R.  Co.,  19 

V.  Vanderberg,  67  id.  530 ;  Spillman  Mo.  App.  542. 


§  351.]  PUBLICATION    NOTICE.  253 

§351.  Record  evidence. —  There  should  always  be  record 
evidence  of  the  fact  of  publishing  the  notice.^  Such  evidence 
must  be  precisely  what  the  statute  prescribes  where  there  is 
a  provision  specifying  what  form  the  evidence  must  take. 
The  sheriff's  return  that  notice  was  given  in  the  prescribed 
way,  for  the  prescribed  time,  in  the  journal  designated  by 
him  or  by  the  order  of  court,  and  with  all  the  particulars  of 
information  which  the  statute  may  require  as  essential  to  be 
notified  to  the  defendant,  may  be  sufficient  in  the  practice  of 
some  states.  Usually  and  more  commendably  the  papers  con- 
taining: the  advertisement  are  filed  in  the  cause  with  the  sher- 
iff's  return,  and  sometimes  the  publisher  himself  must  make 
oath  that  the  notice  has  appeared  the  requisite  number  of 
times  within  the  given  period  and  at  the  proper  intervals.  It 
has  been  held  that  the  fact  of  publishing  may  be  found  by  the 
court  in  the  absence  of  anything  upon  the  record  to  support 
the  finding;  but  notice  to  an  absentee,  like  any  other  jurisdic- 
tional matter,  must  appear  of  record  in  some  form.  Want  of 
notice  may  be  assigned  as  error.  If  the  record  shows  that 
there  was  no  notice  when  the  statute  requires  one,  the  judg- 
ment would  be  null. 

It  has  been  held  that  when  the  judgment  recites  that  pub- 
lication has  been  made  according  to  law",  there  is  sufficient 
record  evidence  of  publication.^ 

Schnell  v.  Chicago,  38  id.  382 ;  Pome-  351 ;  Shearer  v.  Anderson  (Wis.),  47 

roy  V.   Betts,   31   Mo.   419;  Bobb  v.  N.  W.  360. 

Woodward,  43  id.  482 ;  Likens  v.  Mc-  ^  Johnson  v.  Layton,  5  Harrington 

Cormick,    39  Wis.    313;    Sexton    v.  (Del.),  252;  Brinsfield  v.  Austin.  39 

Rhames,  13  id.   99;  Scorpion  S.  M.  Ala.  227;  Dow  v.  Whitman,  36  id. 

Co.  %\  Marsano,  10  Nev.  370 ;  Grewell  604 ;  Foyles  v.  Kelso,  1  Blackf.  (Ind.) 

V.Henderson,  5  Cal.  465;  People  v.  215;  £'a;  paHe  Railroad  Co.,  103  U.  S. 

Huber,  20  id.  81 ;  Lawrence  v.  State,  794 ;  Vairin  v.  Edmonson,  10  111.  270 ; 

30  Ark.  719 ;  Cook  v.  Farren,  34  Barb.  Haywood  v.    McCrory,   33  id.   459 ; 

95;    Lovejoy  v.   Lunt,  48  Me.   377;  Hay  wood  r.  Collins,  60  id.  32^;  John- 

Zacharie  v.  Bowers,  3  Sm.  &  M.  641 ;  son  v.  Hanna,  66  Ala.  127 ;  Saffarans 

Mitchell  V.   Woodson,  37  Miss.  567 ;  v.  Terry,  20  Miss.  690 ;  Bates  v.  Crow, 

Magoffin  V.   Mandevilie,  28  id.  354;  57  Miss.  676;  Clark  v.  Bratt,  71  Mo. 

King  V.   Harrington,  14  Mich.  532 ;  473 ;  Millar  v.  Babcock,  29  Mich.  526 ; 

Crabb  v.  Atwood,  10  Ind.  331 ;  Hill  v.  Carleton  v.  Washington  Ins.  Co.,  35 

Faison,  27  Tex.  428 ;  Colman  v.  An-  N.    H.    102 ;  Freeman  v.  Thompson, 

derson,  10  Mass.  105 ;  Bussey  v.  Leav-  53  Mo.  183. 

itt,  12 Me.  378;  Gary  r.  May,  16  Ohio,  ^In  Tennessee:   Hopper  v.  Fisher, 

66.    See  Dollins  v.  Pollock,  89  Ala.  2  Head,  253;  Cornelius  v.  Davis,  id. 


254  EETUKN   AFTER    DIRECT   ATTACHMENT.       [§§  352-354. 

§  352.  The  failure  of  the  record  to  show  the  fact  of  publica- 
tion notice  in  compliance  with  law  is  so  serious  that,  when  the 
omission  is  assigned  as  error,  judgment  in  favor  of  the  attach- 
ing creditor  may  be  reversed  on  that  ground.  This  is  the  rule 
in  attachment  proceedings  as  well  as  in  other  classes  of  cases 
where  publication  is  required/  whether  held  jurisdictional  or 
not. 

§  353.  When  the  defendant  makes  no  appearance  so  as  to 
cure  want  of  summons  or  notice,  the  record  must  show  one 
or  the  other.  'No  one  has  ever  conceived  that  summons  need 
not  appear  of  record,  in  a  suit  personal  in  form,  where  it  is  re- 
lied upon  to  show  jurisdiction  over  a  non-appearing  defendant. 
Every  reason  against  omitting  the  summons  from  the  record 
under  such  circumstances  applies  against  the  omission  of  pub- 
lication notice  when  it  is  relied  upon,  after  failure  of  summons, 
to  show  jurisdiction  completed  over  the  attached  property. 
Since  publication  is,  by  statute,  made  the  substitute  for  an 
abortive  summons,  so  far  as  proceeding  against  the  attached 
property  of  the  nominal  defendant  is  concerned,  it  is  entitled 
to  equal  importance  as  a  matter  of  record. 

§  354.  PuMication  and  summons. — Publication  notice  alone, 
without  the  actual  attaching  and  continuous  holding  of  the 

97;  Birdsong  v.  Birdsong,  id.  289;  Thornton  u  Mulquinne,  13  id.  549; 
Davis  V.  Jones,  3  id.  603;  Kilcrease  Gelstrop  v.  Moore,  26  Miss.  206; 
u  Blythe.  6  Humph.  378;  Gimu  n  Clark  r.  Hohiies,  1  Doug.  (Mich.)  394 ; 
Mason,  2  Sneed,  637.  But  the  neces-  Palmer  v.  Oakley,  2  id.  472 ;  Green- 
sity  of  publication,  and  its  appear-  vault  v.  F.  &  M.  Bank,  id.  498 ;  Haw- 
ance  of  record,  to  the  jurisdiction  of  ley  v.  Mead,  52  Vt.  343 ;  Rollins  v. 
the  court,  is  fully  and  strongly  held  Clement  49  Vt.  98 ;  Folsom  v.  Con- 
in  the  much  later  case  of  Walker  v.  nors,  49  id.  4 ;  Kidder  v.  Hadley,  25 
Cottrell,  6  Bax.  257.  Also,  Ingle  v.  id.  544;  Whitney  v.  Silver,  22  id. 
McCurry,  1  Heisk.  26.  The  Code  of  634 ;  Alexander  v.  Abbott,  21  id.  476 ; 
Tennessee,  §g  3522,  3523,  3524,  makes  French  v.  Hoyt,  6  N.  H.  370 ;  Pope  v. 
publication  a  jurisdictional  requisite.  Cutler,  34  Mich.  152 ;  Gillett  v.  Need- 
1  Haywood  V.  Collins,  60  111.  328 ;  ham,  37  id.  143 ;  Arnold  v.  Nye,  23 
Haywood  v.  McCrory,  33  id.  459 ;  id.  292 ;  Ryder  v.  Flanders,  30  id.  341 : 
Foyles  v.  Kelso,  1  Blackford,  215 ;  Corwin  v.  Merritt,  3  Barb.  341 ;  Shel- 
Babbitt  v.  Doe,  4  Ind.  355 ;  Guy  v.  don  v.  Wright,  5  N.  Y.  518 ;  Ridgeney 
Pierson,  21  id.  18 ;  Doe  v.  Anderson,  v.  Coles,  6  Bosworth  (N.  Y.),  486 ; 
5  id.  34;  Dow  v.  Whitman,  36  Ala.  Sibley  v.  Waffle,  16  N.  Y.  185;  Bloom 
604;  Gibbs  v.  Shaw,  17  Wis.  197;  v.  Burdick,  1  Hill,  140;  Dakin  v. 
Sitzman  v.  Pacquette,  13  id.  291 ;  Hudson,  6  Cow.  222 ;  Floyd  v.  Black, 
Cummings  v.  Tabor,  61  id.  185;  Litt.  Sel.  Cas.  11. 
Cooper  V.  Sunderland,  3  Iowa,  114; 


§  355.]  PUBLICATION    NOTICE.  255 

debtor's  property,  is  of  no  avail ;  ^  though  the  case  would  be 
different  were  the  defendant  reached  by  summons.  Publica- 
tion is  therefore  not  the  equivalent  of  summons,  so  far  as  the 
defendant  is  concerned,  but  only  so  far  as  it  relates  to  attached 
property ;  but  the  reason  for  making  it  of  record  is  as  sound, 
even  in  the  absence  of  a  statutory  requirement.  The  recorded 
notice  shows  that  the  owner  has  been  given  opportunity  to 
appear,  but  there  is  in  the  personal  suit  no  substitute  for 
service.  The  defendant  cannot  be  brought  into  court  and 
subjected  to  its  jurisdiction  by  any  less  or  different  means. 
It  is  misleading  to  treat  publication  notice  as  a  substitute  for 
service  on  the  defendant,  so  far  as  the  personal  suit  is  con- 
cerned :  it  is  such  only  so  far  as  the  proceeding  is  against  at- 
tached property.^  AYhere  both  publication  and  posting  are 
required,  attachment  is  vitiated  by  the  neglect  of  either.^  So 
if  both  publication  and  mailing  are  required.^ 

§  355.  Oivners. —  It  is  also  important  to  note  the  difference 
between  proceedings  against  attached  property,  with  respect 
to  the  debtor-owner,  and  those  against  things  irrespective  of 
owners,  in  the  matter  of  publication.  In  the  former  it  is  a 
substitute  for  summons;  in  the  latter  it  is  not,  and  cannot 
])Ossibly  be,  for  the  reason  that  no  summons  is  ever  issued. 
In  the  former  the  notice  is  as  limited  as  the  summons ;  in  the 
latter  it  is  "to  all  persons  having,  or  pretending  to  have,  any 
right,  title  or  interest  in  or  to  "  the  property  against  which 
the  proceeding  is  instituted.  The  legal  reader  will  see  that 
to  hold  publication  notice  a  non-essential  in  an  attachment 
suit  after  summons  has  failed  is  to  hold  the  issue  of  the  sum- 
mons itself,  in  the  first  instance,  to  be  a  non-essential. 

1  Pennoyer  v.  Neflf,  95  U.  S.  714.  it  was  held  that  the  defendant's  ap- 

^  Notice    by  publication    may  be  peai'ance  five  years  after  judgment 

substituted  for  service,  so  as  to  bind  and  sale  waived  publication  and  gave 

the  defendant  personally,  if  he  has  the  court  jurisdiction  retroactively. 

previously  assented  to  such  substi-  Warren  v.  Dick,  17  Neb.  241 ;  Neb. 

tution  in    some    legally   prescribed  Code,  §  82. 

method.     Vallee    v.    Dumergue,    4  ^  Petty  v.  Frick  Co.,  86  Va.  501. 

Exch.    290;    Lafayette    Ins.    Co.   v.  ^Dennison  r.  Taylor,   142  111.  45; 

French,  18  How.  (U.  S.)  404 ;  Gillis-  Baldwin   f.   Ferguson,   35   111.    App. 

pie  V.    Commercial   Mutual  Marine  393 ;  Thormeyer  v.  Sisson,  83  111.  188. 

Ins.  Co.,  12  Gray,  201.    In  Nebraska 


CHAPTER  X. 

LIABILITY  TO  GARNISHMENT. 

I.  Property  in  the  Garnishee's  Hands §§  356-361 

IL  Credits  Due  the  Defendant 362-364 

III,  Funds  Held  in  Trust  or  on  Deposit,  etc.      ....       365-371 

IV.  Conditional  Obligations 372-376 

V.  Partnership  Liability 377-379 

VI.  Promissory  Note 380-386 

VII.  Non-resident  Third  Possessors 387-392 

I.  Pkopekty  in  the  Gaknishee's  Hands. 

§  356.  Possession. —  Actual  possession  of  defendant's  prop- 
erty subject  to  execution  for  his  debt  renders  the  possessor 
liable  as  a  garnishee.^  It  must  be  under  control  so  that  he  be 
capable  of  turning  it  over  on  judicial  demand.  Mere  posses- 
sion, without  authority  or  right  derived  from  the  defendant, 
directly  or  indirectly,  to  hold  the  property  for  him  might 
give  the  right  of  direct  attachment,  but  would  give  the  pos- 
sessor no  legal  control  over  it  and  no  right  to  turn  it  over. 
Whether,  in  such  case,  he  is  amenable  as  garnishee  must  de- 
pend on  circumstances.  If  without  authority,  but  by  the 
sufferance  of  the  owner,  he  holds,  he  would  be  amenable  to 
the  process.^  If  he  holds  property  as  collateral  security,  he 
is  liable  only  for  any  excess.^  If  the  possession  of  property 
is  temporary,  as  that  of  a  hotel-keeper  in  charge  of  a  guest's 
baffgafi-e,  or  that  of  a  man  who  has  a  hired  horse  for  a  ride, 
or  that  of  one  who  has  an  article  on  trial  with  the  view  of 
purchasing  it,  such  actual  possession  ought  not  to  subject  the 
holder  to  garnishment,  but  such  articles  should  be  deemed  in 

1  Jones    u    Crews,    64    Ala.    368 :  Miller,  71  id.  90 ;  Iowa  Code,  §  2975 ; 

Andrews  v.  Ludlow,  5  Pick.  28 ;  Bin-  Letts  v.  McMaster,  83  la.  449. 

rell  V.  Letson,  1  Strobhart  (S.  C),  239 ;  2  Buddig  v.  Simpson,  33  La.  Ann. 

Estabrook    v.   Earle,   97   Mass.    302;  375. 

Kiggins  V.  Woodke,  78  la.  34 ;  Foun-  3  Chesapeake,  etc.  Co.  v.  Sparks,  18. 

tain  V.  Smith,  70  id.   282;  Smalley  v.  Fed.  281. 


§  357.]  PKOPERTT    IN    garnishee's    HANDS.  257 

])ossession  of  the  owner  and  liable  to  direct  seizure  and  de- 
tention as  his.^ 

On  the  other  hand,  though  not  in  actual  possession,  the 
right  to  possess  has  been  thought  to  render  the  third  person, 
having  such  right,  amenable  to  the  process;'-  but  this  supposi- 
tion must  not  be  received  without  considerable  qualification, 

§  357.  Possession  by  the  garnishee  must  be  of  such  charac- 
ter as  to  give  the  defendant  the  right  to  recover  possession  as 
owner.  In  other  words,  the  garnishee's  possession  must  really 
be  that  of  the  defendant-owner,  since  he  must  hold  for  the 
owner.  If  the  relation  between  the  two  is  such  that  the 
owner  cannot  regain  his  own,  it  follows  that  the  plaintiff  in 
an  attachment  suit  against  him  cannot  reach  the  third  person 
who  is  in  possession,  since  such  attaching  creditor  cannot 
have  greater  rights  and  privileges  towards  the  property  so 
held  than  the  debtor  himself,  unless  the  latter  has  been  es- 
topped by  his  own  fraudulent  transfer  from  asserting  his 
right.^  In  other  words,  the  garnishee's  liability  to  the  de- 
fendant is  the  measure  of  his  liability  to  the  attaching  cred- 
itor,"*  though  the  defendant,  as  above  stated,  may  be  estopped 
by  his  own  fraud  or  laches!^ 

1  Robertson  v.  Scales,  13  La.  Ann.  La.  Ann.  505;   Lundie  v.  Bradford, 

545.  26  Ala.  512 ;  Cairo,  etc.  R.  R.  v.  Kil- 

^  Morse  v.  Holt,  22  Me.  180 ;  Lane  leuberg,   82   111.    295 ;    Fitzgerald  v. 

V.  Nowell,  15  id.  86.  Hollingsworth,    14    Neb.    188.     The 

3  Railway  v.  Gibson,  15  Colo.  300;  principle  is  well   illustrated  in  sev- 

Sickman  v.  Abernethy,  14   id.  184 ;  eral  cases  in  Oregon.     Meir  v.  Hess, 

Hallowell  v.  Leafgreen  (Colo.  App.),  23    Oreg.    509 ;    Navigation    Co.    v. 

32  P.  79;  National  Bank  of  Missouri  Gates,  10  id.  514;  Baker  v.  Eglin,  11 

V.  Stanley,  9  Mo.  App.  146;  Skowhe-  id.  334;  Phipps  v.  Rieley,  15  id.  497; 

gan  Bank  v.  Farrar,  46  Me.  293 ;  Mc-  Case  v.  Noyes,  16  id.  3"^9 ;  Rhodes  v. 

Glenchy  v.  Winchell,  63  id.  31 ;  Sam-  McGarry,  19  id.  222 ;  Riddle  v.  Miller, 

uel  V.  Agnew,  80  111.  553 ;  Waldron  id.  468. 

V.  Wilcox,  13  R.  L  518;  Bait  &  O.  ^  Jones  u  Langhorne  (Colo.),  34  P. 

Ry.   Co.    V.    Wheeler,    18    Md.    372;  997;  Railroad   Co.   v.  Gibson,  15  id. 

Armor  v.  Cockburn,  4  Martin,  N.  S.  299 ;  Sauer  v.  Nevadaville,  14  id.  54 ; 

(La.)  667 ;  Burnside  v.  McKinley,  12  Sickman    v.    Abernethy,     id.     174 ; 

5  Joseph  V.  People's  Bank,  132  Ind.  r.    Murphy,   54   Ala.   246.     A  donee 

39,    overrxiling  Joseph    v.    Kronen-  was  held  as  garnishee  on  the  ground 

berger,  120  Ind.  495  {compare  Chat-  that  the   donation  was   in  fraud  of 

I'oop  V.  Borgard,   40  111.  App.  279} ;  creditors.     Harmon  v.   Osgood,   151 

Ej'orman  v.  Krieckhaus,  7  Mo.  App.  Mass.   501.     Compare   Heimstedt  v. 

455 ;  Lee  v.  Tabor,  8  Mo.  322 ;  Henry  German  Bank,  46  Ark.  537. 
17 


25S  LIABILITY    TO    GARNISHMENT.  [§  358. 

A  corporation  whose  property  was  sold  had  furnished  the 
money  to  the  purchaser  for  the  purpose  of  buying;  and  he 
transferred  the  property  to  a  new  corporation  which  succeeded 
the  old  one.  He  was  not  chargeable  as  garnishee  in  an  action 
against  the  old  corporation.^  As  a  purchaser  for  value,  the 
attaching  creditor  may  be  in  a  better  position  than  his  debtor, 
as  against  the  garnishee.^ 

§358.  FHi'itij. —  The  privity  between  the  debtor  and  his 
debtor,  or  between  the  defendant-owner  and  the  third  person 
in  possession,  necessary  to  the  legal  existence  of  garnishment, 
relates  both  to  interest  and  contract.  The  defendant  may  be 
entitled  to  regain  possession  of  property  or  money  from  his 
agent  or  from  any  person  holding  it,  yet  not  have  any  pro- 
prietorship vested  in  himself.  He  may  have  a  right  of  action 
for  its  recover}^,  yet  the  recovery  may  be  for  the  use  of  an- 
other ])erson.  He  may  have  what  is  technically  called  "  the 
legal  titte,"  yet  he  may  be  only  the  trustee  of  some  real 
owner.  An  executor,  administrator,  guardian,  tutor,  factor, 
common  carrier,  etc.,  may  legally  have  the  right  to  regain 
possession  of  money  or  goods  from  the  hands  of  a  third  per- 
son, 3^et,  as  they  are  not  the  owners  of  the  property  or  money 
belonging  to  them  for  administrative  purposes  only,  it  cannot 
be  subjected  to  the  process  of  garnishment  in  any  attachment 
suit  against  any  one  of  them  for  his  own  indebtedness.  A 
factor  receives  a  consignment  of  cotton  from  a  planter  for 
sale;  he  intrusts  it  to  an  agent  for  some  purpose;  he  has  the 
right  to  reclaim  possession:  w^hy  may  not  the  cotton  be  sub- 
jected to  garnishment,  and  the  sub-agent  be  made  a  garnishee, 

Marks  v.  Anderson,  1  Colo.  App.  1 ;  Brown  v.  State,  7  Humph.  112;  Far- 

Healey  i?.  Butler,  66  Wis.  9;  Capen  well    v.   Chambers,   62    Mich.    316; 

V.  Duggan,   136  Mass.  501;  Mensing  Harney  v.  Ellis,  11  Sm.  &  M.  348; 

V.  Engelke,  67  Tex.  532 ;  Richardson  Balliet  v.  Brown,    103  Pa.    St.   546 ; 

V.  Lester,  83  111.  55 ;  Talbot  v.  Tarlton,  Connolley  v.  Chesebro,  21  Ala.   166 ; 

5  J.  J.  Marshall,  641 ;  Fenton  v.  Block,  Archer  v.  Savings  Bank,  88  id.  249 ; 

10  Mo.  App.  536 ;  Ritteu  v.  Insurance  Fortune  v.  State  Bank,  4  id.  385 ;  East 

Co.,  28  id.  140 ;  Heege  v.  Fruin,  18  id.  Tenn.  etc.  Co.  v.  Kennedy,  83  id.  462 ; 


139 ;  Scales  v.  Hotel  Co.,  37  Mo.  520 
National  Bank  v.  Stanley,  9  id.  146 
Oregon,  etc.  Co.  v.  Gates,  10  Or  eg.  514 


Hall  V.  Magee,  27  id.  414;  Huot  v. 
Ely,  17  Fla.  775. 

1  Balliet  v.  Brown,  103  Pa.  St.  546. 


Lyman  v.  Orr,  26  Vt.    119;  Clinton        2  jyjeir  v.   Hess,  supra;  Healey  v. 
N.  Bank  v.   Studemanu,   74  la.  104 ;     Butler,  66  Wis.  9. 
Cram  v.  Schackelton,  64  N.  H.  44; 


§  35S.] 


PKOPERTY    IN    GAENISHEE  S    HANDS. 


259 


in  an  attachment  suit  brought  by  a  creditor  of  the  factor? 
Evidently  because  the  factor  does  not  own  the  cotton,  and  it 
cannot  be  made  to  pay  his  debt.^  Here  is  a  case  where  privity 
of  interest  between  the  defendant  and  the  garnishee  is  want- 
ing. Equally  plain  illustrations  might  be  drawn  from  the 
case  of  administrators  and  others  above  mentioned,  when 
third  persons  are  sought  to  be  made  garnishees  because  'of 
temporar}''  possession  of  money  or  property  which  may  be 
reclaimed  by  such  trustees  but  not  in  the  capacity  of  owners.- 
The  case  of  auctioneers  who  sell  for  sheriffs  or  other  execu- 
tive officers,  and  receive  the  proceeds  of  the  sale  to  be  handed 
over  to  their  prmcipals,  may  serve  to  illustrate  want  of  privity 
should  they  be  served  as  garnishees ;  for  they  are  in  no  sense 
the  agents  of  those  whose  property  is  sold ;  have  no  relation 
with  such  former  owners,  and  are  therefore  not  chargeable  as 
having  in  possession  money  and  goods  of  such  prior  owners.'' 
There  must  be  privity  of  interest  between  the  defendant 
and  the  garnishee  to  render  the  latter  liable.'* 


1  Goods  received  by  a  partnership 
to  be  sold  in  its  name  for  another 
held  liable  to  attachment  in  a  suit 
against  the  firm,  under  Mississippi 
Code  1892,  §  42B4.  Citizens'  Bank 
V.  Studebaker  Man.  Co.  (Miss.),  14  So. 
733 ;  Shannon  v.  Blum,  60  Miss.  838. 

2  Adams  ?'.  Avery,  2  Pittsb.  77. 

s  South  Bend  Iron  Works  v.  Cot- 
trell,  31  Fed.  259 ;  Moors  v.  Goddard, 
147  Mass.  298 ;  Penniman  v.  Ruggles, 
6  Mass.  166 ;  Casey  v.  Davis,  100  id. 
124;  Wells  v.  Banister,  4  id.  514; 
Richardson  v.  Whiting,  18  Pick.  530 ; 
Chapin  v.  Ct  R.  R,  Co.,  16  Gray,  69 ; 
Barnard  v.  Graves,  16  Pick.  41 ; 
Brigden  v.  Gill,  16  Mass.  522 ;  White 
V.  Jenkins,  id.  62 ;  Burnham  v.  Beal, 
14  Allen,  217 ;  Field  v.  Crawford,  6 
Gray,  116;  Falsom  v.  Haskell,  11 
Cush.  470 ;  Mcllvaine  v.  Lancaster, 
42  Mo.  96 ;  Nuer  v.  O'Failon,  18  id. 
277 ;  Briggs  v.  Block,  id.  281 ;  Haust 
V.  Burgess,  4  Hughes,  560 :  Kelly  v. 
Babcock,  49  N.  Y.  318 ;  Kelly  v.  Rob- 
erts, 40  id.  432 ;  Stinson  v,  Caswell,  71 


Me.  510 ;  Titcomb  v.  Seaver,  4  id.  542 ; 
Sweet  V.  Read,  12  R.  I.  121;  Jones  v. 
Etna  Ins.  Co.,  14  Ct.  501 ;  Elmer  v. 
Welch,  47  id.  56 ;  Towne  v.  Griffith, 
17  N.  H.  165 ;  Bean  v.  Beau,  33  id. 
279 ;  Pickering  v.  Wendell,  20  id.  222 ; 
Walker  V.  Detroit,  Grand  Haven,  etc. 
R.  R.  Co.,  49  Mich.  446 ;  Eichelberger 
V.  Murdock,  10  Md.  373;  Mattingly 
V.  Grimes,  48  id.  102 ;  Jones  v.  Crews, 
64  Ala.  368 ;  Huntley  v.  Stone,  4  Wis. 
91 ;  Simpson  v.  Harry.  1  Dev.  &  Bat. 
(N.  C.)  202 ;  Center  v.  McQuesten,  24 
Kan.  480;  Miller  v.  Richardson,  1 
Mo.  310;  Swan  n  Summers,  19  W. 
Va.  115;  Halpin  v.  Barringer,  26  La. 
Ann.  170 ;  Hartman  v.  Olvera,  54  Cal. 
61 ;  Meadowcroft  v.  Agnew,  89  111. 
469.  See  Vanderhoof  v.  McAflFee,  41 
Minn.  498. 

4  Atwood  V.  Hale,  17  Mo.  App.  81 ; 
Richardson  v.  Whiting,  18  Pick.  530; 
Willardf.  Sturtevaut,  7  id.  194 ;  Wells 
V.  Greene,  8  Mass.  504 ;  Bowler  v. 
European,  etc.  Co.,  67  Me.  395 ;  Gould 
V.  Newburyport  R.  Co.,  14  Gray,  472 ; 


260  LIABILITY    TO    GARNISHMEXT.  [§§  359,   360. 

Where  there  is  no  privity  of  contract  between  the  garnishee 
and  the  defendant,  garnishment  cannot  be  maintained.^  Where 
there  is  jDrivity  of  both  interest  and  contract  the  garnishee 
may  be  charged;  -  but  both  privities  are  not  always  essential 
to  liability.^ 

§  359,  One  who  has  promised  to  deliver  property  in  pay- 
ment (for  instance,  a  certain  number  of  bales  of  cotton)  can- 
not be  made  garnishee  in  a  suit  against  the  person  to  whom 
the  goods  are  to  be  delivered ;  that  is,  the  cotton  could  not 
be  attached  in  the  hands  of  such  third  person  as  the  property 
of  the  defendant.* 

Whether,  as  under  the  custom  of  London,  the  plaintiff  may 
"surmise"  that  his  debtor  has  property  in  the  hands  of  an- 
other, or  funds  in  such  hands  liable  to  garnishment,  and  may 
thereupon  garnish  himself,  is  not  everywhere  settled  in  this 
country.  It  has  been  held  that  the  ])laintiff  cannot  garnish 
himself,^  but  it  has  also  been  held  that  he  may  do  so.^ 

§  360.  Beal  estate. —  Land  owned  by  the  attachment  debtor^ 
but  in  the  possession  of  a  third  person,  is  not  subject  to  gar- 
nishment, as  a  general  rule;  the  ordinary  method  is  to  attach 
it  constructively  by  giving  notice  of  a  seizure  to  the  tenant 
in  possession,  and  returning  it  as  attached.  It  is  not  subject 
to  the  process  of  garnishment  unless  expressly  made  so  by 
statute. 

Clark  V.  Clark,  62  Me.  255 ;  Peabody  v.  Hoag,  55  id.  172 ;  Belknap  v.  Gib- 

V.   Maguire,   79    id.   572 ;    Smith    v.  bens,  13  Met  (Mass.)  471. 

Posey,  2  Hill  (S.    C),  ^471 ;  First   N.  6  Coble  v.   Nonemaker,  78  Pa.  St 

Bank  v.   Railroad  Co.,  2  Fed.  831;  501;  Lyman   v.   Wood,  42  Vt    113; 

Eddy  V.  Heath's  Garnishees,  31  Miss.  Grayson  v.  Veeche,  12  Martin  (La.), 

141.  68S;    Eichardson  v.   Gurney,   9  La. 

1  Felch  V.  Eau  Pleine,  etc.  Co.,  58  285.  See  Boyd  v.  Bayless,  4  Humph. 
Wis.  431 ;  Nicholson  v.  Crook,  56  Md.  386 ;  Arlege  v.  White.  1  Head,  241 : 
55 ;  Folsom  v.  Haskell,  11  Cush.  470.  Graigle  v.  Notnagle,  1  Pet  C.  C.  245 ; 

2  Russell  V.  Lewis,  15  Mass.  127;  National  Bank'  v.  Railroad  Co.,  21 
Watkius  V.  Otis,  2  Pick.  88 ;  Mat-  Ohio  St  221 ;  Norton  v.  Norton,  43  id. 
thews  V.  Park,  1  Pittsb.  22 ;  First  N.  509.  Compare  Dudley  v.  Falkner,  49 
Bank  v.  Gandy,  11  Neb.  431.  Ala.  148. 

3  Reynolds  v.  Smith,  7  Mackey,  27.  '  How  v.  Field.  5  Mass.  390 ;  Dick- 

4  Jones  V.  Crews,  04  Ala.  368.  inson  v.  Strong.  4  Pick.  57 ;  Repley 
aWoolbridge    v.   Holmes,   78  Ala.     v  Severance,  6  id.  474-;  Gore  n  Clisby, 

570 ;  Shepherd  v.  Bridenstine,  80  la.  8  id.  555 ;  Bissell  v.  Strong.  9  id.  562 : 
255;  Knight  v.  Clyde,  13  R.  I.  518;  Chapman  v.  Williams,  13  Gray,  416; 
Blaisdell  v.  Ladd,  14  N.  H.  129;  Hoag    Moor  v.  Towle,  38  Me.  133;  Stedman 


§  361.]  PROPERTY    IN   garnishee's    HANDS.  261 

"  One  who  holds  the  deed  of  another's  land  merely  as  a 
cover  to  cheat  the  owner's  creditors  is  not  thereby  charge- 
able as  trustee ;  for  the  land  is  not  '  effects '  in  his  hands, 
nor  is  its  value  a  'credit.'  .  .  .  The  land  is  attachabla 
in  the  ordinary  way ;  but  if  the  grantee  should  be  chargeable 
Avith  its  value  he  might,  after  having  paid  that  value  to  one 
creditor,  have  the  land  taken  from  him  by  another  creditor, 
and  thus  lose  it  after  having  paid  for  it."  ^ 

Creditors  having  obtained  an  order  to  sell  their  debtor's 
land,  and  having  garnished  purchasers  of  land  from  him  be- 
fore the  order,  and  having  given  bonds  for  the  price,  failed  to 
realize  from  the  garnishments.  The  debtor  could  not  have 
his  debt  diminished  by  the  amount  of  the  bonds.- 

Eealty  being  acquired  by  man  and  wife  as  tenants  by  en- 
tireties under  one  title,  and  the  proceeds  of  its  sale  being  in 
the  hands  of  their  agent,  each  owns  half  the  money ;  so  the 
agent  may  be  garnished  for  a  moiety  in  a  suit  against  the 
husband.* 

§361.  Sents. —  A  landlord's  claim  for  rent  not  due  when, 
the  tenant  was  served  as  garnishee  but  due  when  he  answered 
was  held  not  assignable  by  the  landlord,  the  defendant  in  the 
garnishment  proceeding.^  Rents  not  due  when  the  garnishee 
discloses  afford  no  basis  for  judgment.^  Rents  due  may  be 
subjected  to  garnishment  like  any  other  debt.  Held,  that 
they  may  be  in  a  suit  against  the  husband  though  the  wife 
owned  the  land." 

r.  Vickery,   43  id.  132;  Plummer  v.  2X)ickinson  v.  Clement,  87  Ya.  41. 

Rundlett,  42  id.  365 ;  Hunter  v.  Case,  3  Fogleraan  v.  Shively  (Ind.  App.), 

20  Yt.  195 ;  Baxter  v.  Currier,  13  id.  30  N.  E.  909. 

C15 ;  Wright  v.   Bosworth,  7  N.  H.  *  Gause  r.  Cone,  73  Tex.  239.     See 

590 ;  Risley  v.  Welles,  5  Ct.  431 ;  Sey-  (garnishment  by  lessor  for  rent;  Ri- 

mour   V.    Kramer,    5   la.    285.      See  ley  v.  Renick  Milling  Co.,  44  Mo.  App. 

Dressor  v.  McCord,  96  111.  389.  519. 

1  Woodward  r.  Wyman,  53  Yt.  645,  5  Blankenship  v.  Moore  (Tex.),  18  S. 

citing  Prout  v.  Yaughan,  52  id.  451 ;  W.  780. 

Stevens  v.  Kirk,  37  id.  204;  Hunter  6  Hayden  v.  McMillan,  4  Tex.  Civ. 

V.  Case,  20  id.  195 ;  Baxter  v.  Currier,  App.   479 ;  Rhine  v.  Blake,  59  Tex. 

13  id.  615 ;  How  v.  Field,  5  Mass.  390 ;  240  (because  rent  is  personaltj'). 
Bissell  V.  Strong.  9  Pick.  561 ;  Risley 
V.  Welles,  5  Ct.  431. 


262  LIABILITY"    TO    GARNISHMENT.  [§§  362,  363. 

II.  Credits  Due  the  Defendant. 

§  362.  Certainty. —  Garnishment  is  not  maintainable  unless- 
the  debt  is  payable  in  money  and  the  defendant  has  a  right 
of  action  (present  or  maturing)  to  recover  it.^  This  is  tho 
usual  rule,  but  doubtless  a  garnishee  may  be  charged  to  pay 
in  specific  articles  when  not  owing  the  defendant  a  sum  pay- 
able in  money.'^  The  pendency  of  a  suit  against  the  garnishee, 
instituted  by  the  attachment  defendant,  does  not  prev^ent  his 
being  charged;^  but  the  fact  that  such  a  suit  is  pending  for 
libel  is  no  evidence  of  debt,  and  the  garnishee  is  not  charge- 
able by  an  attachment  plaintiff  till  judgment  for  libel  has  been 
rendered.^  When  judgment  has  been  rendered  there  is  no  im- 
pediment to  its  being  reached  by  garnishment  in  a  suit  against 
the  judgment  plaintiff.  Even  alimony  adjudged  to  the  wif& 
against  her  divorced  husband  may  be  thus  reached  in  a  suit 
against  her.^ 

§  363.  In  several  states  garnishment  reaches  only  what 
property  is  held  or  what  debt  is  due  by  the  garnishee  at  the 
time  of  the  service  of  the  process ;  "^  in  others  it  reaches  all  that 

1  Railway  Co.  v.  Smeeton  (Colo.  291;  Bartlett  v.  Wood,  32  id.  378; 
App.),  29P.  815;  Voorhiesu  Denver    Fuller  v.   O'Brien,    121    Mass,    422; 

■  Hardware  Co.  (id.),  36  id.  65 ;  Marks  Willard  v.  Butler,  14  Pick.  550. 

V.  Anderson,  1  Colo.  App.  4 ;  Willard  3  gt.  Louis,  etc.  R.  Co.  v.  Richter,  48 

V.   Butler,    14  Pick.    550 ;    Baker   v.  Ark.  349. 

Eglin,  llOreg.  333;  Wrigley  y.  Geyer,  ^  Detroit  Post  and  Tribune  Co.  ?v 

4  Mass.  102 ;  Weil  v.  Tyler,  43  Mo.  Reilly,  46  Mich.  459. 

581 ;   Davis  v.   Willey,   57  Vt.    125 ;  5  Scheflfer  v.  Boy,  5  Pa.  Co.  Ct  R. 

Bartlett  v.  Wood,  32  id.  372 ;  Aldrich  159. 

V.  Brooks,  5  Foster,  241 ;  Mansfield  v.  6  Van  Vleet  v.  Stratton,  91   Tenn. 

Stevens,  31  Minn,  40 ;  Coykendall  v.  473 ;  Foster  v.  Singer,  69  Wis.  392 ; 

Ladd,   32  id.   529 ;    North   Star,  etc.  Bishop  v.  Young,  17  id.  46 ;  Gillette  v. 

Co.  V.  Ladd,  id.  381 ;  Peebles  v.  Meeds,  Cooper  (Kan.),  30  P.  13 ;  Burlington, 

96  Pa,  St.  150;  Jennings  V.  Summers,  etc,   R.    Co,   v.   Thompson,   31   Kan. 

7  How,  (Miss.)  453,    Compare  Cherry  180  ;  Donnell  v.  Portland,  etc.  R  Co., 

V.    Hooper,    7    Jones,    82 ;    Blair    v.  76  Me.  33 ;  Davis  v.  Summit,  86  N, 

Rhodes,   5   Ala.  648;    Blackburn    v.  C.  126;    Lady  Ensley  Furnace  Co. 

Davidson,  7  B.  Mon.  101 ;  Louderman  v.    Rogan,  95    Ala.    594;    Henry    v. 

V.  Wilson,  2  Har.  &  Johns.  379 ;  Clark  Bew,   43  La.    Ann.   476 ;  Conley  v. 

V.  King,  2  Mass,   524;  Townsend  v.  Chilcote,  25  Ohio  St.  320;  Black  v. 

Atwater,  5  Day,  298 ;  Lovejoy  v.  In-  Zacharie,  3  How,  483,  513 ;  Peterson 

eurance  Co.,  11  Fed.  63.     See  Gies  v.  v.  Loring,  135  Mass.  397;  Osborne  v. 

Bechtner,  12  Minn.  279.  Jordan,    3    Gray,   277;    Brackett  u 

2  National  Bank  v.  Brainard,  65  Vt.  Blake,  7  Met.  335 ;  Hennessey  v.  Far- 


§  3G3.]  CKEDITS    DUE    DEFENDANT.  263 

he  owes  the  defendant  and  holds  for  hira,  up  to  the  time  of  the 
answer,  and  even  to  judgment  under  some  statutes.^  There 
may  be  doubt  as  to  minor  questions  affecting  the  relation  be- 
tween the  garnishee  and  the  defendant,  but  the  indebtedness 
of  the  former  to  the  latter  must  be  certain  to  enable  the  cred- 
itor of  the  latter  to  reach  it  by  garnishment.  There  must  be 
no  condition  precedent,  no  impediment  of  any  sort  between 
the  garnishee's  liability  and  the  defendant's  right  to  be  paid, 
such  as  the  attaching  creditor  himself  cannot  remove.  jS'obody 
must  be  iniured:  the  situation  must  be  such  that  the  o-ar- 
nishee  can  get  full  acquittance  of  his  obligation  by  paying 
into  court  under  the  garnishment;  that  the  defendant  can  be 
virtually  paid  by  having  his  own  debt  paid ;  and  that  the  at- 
taching creditor  can  have  his  demand  satisfied  without  injury 
to  any  person  or  to  the  public  at  large.-  The  buyer  of  goods 
Avho  has  promised  to  pay  the  seller's  debt  cannot  be  garnished 
in  a  suit  against  the  seller's  creditor  who  has  not  consented 
to  the  arrangement.^ 

"When  the  debt  is  due  it  should  be  stated  to  be  so  in  the 
complaint  or  petition;  but  an  omission  to  state  this  has  been 
held  not  fatal  when  the  statute  does  not  require  the  averment, 
though  requiring  that  the  debt  must  be  due.^  But  the  omis- 
sion of  the  statement  in  the  affidavit  would  be  fatal.'^ 

rell,  4  Cush.  267;  Daily  v.  Jordan,  2  Fearyn  Cnmmiugs,  41  id.  384;  Marlz 

id.  390 ;  Excelsior,  etc.  Co.  v.  Haines,  v.  Insurance  Co.,  28  id.  204 ;  Todd  v. 

5  Pa.  Co.  Ct.  R  631 ;  Phelps  r.  Eailroad  Missouri  Pac.  R.  Co.,  33  Mo.  App. 
Co.,  28  Kan.  165;  English  v.  King,  10  110;  Swallow  v.  Duncan,  28  id.  622; 
Heisk.  666;  Norris  v.  Burgoyne,  4  Connor  v.  Pope,  id.  86;  Heege  v. 
Cal.  409;  Huntington  v.  Risden,  43  Fruin,  18  id.  139. 

la.   517 ;  Roby  v.  Labuzan,   21  Ala.  i  Ringold  v.  Suiter,  35  W.  Va.  186 ; 

60 ;  Hazard  v.  Franklin,  2  id.  349 ;  Thompson  v.  Gainsville  Nat.  Bank, 

Norton  v.  Soule,  75  Me.  201 ;  Will-  66  Tex.  156 ;  Lieberman  v.  Hoflfman, 

iams  V.  Railroad  Co.,  36  id.  201 ;  Mace  102  Pa.  St.  590 ;  Sheetz  v.  Hobensack, 

r.  Heald,  36  id.  136 ;  Haffey  v.  Miller,  20  id.   412 ;    Patterson  v.  Perry,  10 

6  Gratt.  454 ;  Bean  v.  Union  Bank,  5  Abb.  Pr.  82 ;  Newell  v.  Ferris,  16  Vt 
Rob.  (La.)333;  Lackettu.  Rumbaugh,  135;  Edgerly  v.  Sanborn.  6  N.  H. 
45   Fed.    27;  Kiely  v.   Bertrand,   67  397. 

Mich.  332;  Webber  v.  Bolte,  51  id.  2jones  v.  Crews,  64  Ala.  368;  Tel- 

113;   Kimball   v.    Macomber,   50  id.  les  t?.  Lynde,  47  Fed.  912. 

362 ;  Hitchcock  v.  Miller,  48  id.  603 ;  3  Coleman  v.  Hatcher,  77  Ala.  217. 

Hopson  V.  Dinan,  id.   612;  Kraft  v.  ^  State   Sav.   Bank  v.  Hosmer,  95 

Raths,  45  id.  20 ;  Bethel  v.  Chipman,  Mich.  100. 

57  id.  379;  Bethel  r.  Linn,  63  id.  464;  5  ^^  115-121,  158,  159. 

Conway  v.  Ionia  Judge,  46  id.  28; 


264  LIABILITY    TO    GAKNISHMENT.  [§§  364-360. 

A  debt  not  due  is  not  uncertain  and  contingent  by  reason 
of  its  immaturity.  The  garnishee  cannot  be  made  to  pay  it 
before  maturity,  but  it  may  be  subjected  to  garnishment  when 
there  is  statutory  authorit}^  for  it.^ 

§  364.  One  is  not  liable  to  garnishment  if  he  has  paid  what 
he  owed  the  defendant  in  attachment  b}^  a  bank  check,  though 
the  latter  may  not  have  presented  the  check  to  the  bank  and 
drawn  the  money  prior  to  the  service  of  the  process  of  gar- 
nishment upon  the  drawer  of  the  check.-  It  is  true  that  the 
funds  in  the  bank  are  still  under  his  control  so  that  he  might 
stop  payment  of  the  check;  and,  so  far  as  the  bank  is  con- 
cerned, he  has  the  right  to  control  the  deposit;  but  he  has  no 
moral  right  to  do  so,  considering  his  relation  to  the  payee 
who  has  taken  the  check  in  payment  or  earnest  of  jmyraent. 
At  all  events,  the  drawer,  as  garnishee,  is  not  under  the 
slightest  obligation  to  countermand  his  own  check  for  the  pur- 
pose of  enabling  a  professed  creditor  of  the  payee  to  attach  the 
credit  in  his  hands  and  suspend  settlement  of  his  account  with 
the  payee  for  an  indefinite  time. 

III.  Funds  Held  in  Trust  or  on  Deposit,  etc. 

§  365.  Trustee. — What  the  garnishee  owes  the  defendant 
as  trustee  of  others  cannot  be  reached  by  garnishment.^  One 
who  has  been  legally  authorized  to  collect  the  dues  of  a  part- 
nership firm  and  distribute  i\\e\n  j)^'o  rata  ^mowg  their  cred- 
itors in  paj'^ment  of  debts  due  by  the  firm  cannot  be  made  to 
violate  his  trust,  or  be  defeated  in  the  performance  of  it,  by 
being  made  garnishee  in  an  attachment  suit  afterwards  brought 
by  one  of  the  creditors.^  If  a  garnished  debtor  of  the  firm, 
ignorant  of  the  assignment,  acknowledges  indebtedness,  he 
should  be  allowed  to  correct  his  answer.  Garnishment,  under 
such  circumstances,  cannot  defeat  the  assignment.' 

§  366.  The  general  rule  is  that  trust  funds  cannot  be  reached 
by  garnishment."     They  are  subject  to  the  process  if  the  re- 

1  Thomas    v.   Gibbons,    61   la.    50.  ^  Timm  v.  Stegman  (Wash.),  32  P. 

The  debt  must  be  due  or  certainly  1004. 

owing.      Reinhart    v.    Hardesty,    17  ^  Haust  v.  Burgess,  4  Huglies,  560. 

Nev.  141.     See  Wyman  v.  Hichborn,  5  Sweet  v.  Read,  12  R.  I.  121. 

6  Cush.  264.  6  Marvel  v.  Babbitt,  143  Mass.  226; 

2Getchell  v.  Chase,  124  Mass.  366.  Hinckley  v.  Williams,  1   Cush.   490; 


§  366.]  FUNDS    HELD    IN    TRUST    OK    ON    DEPOSIT,  ETC.  265 

lation  of  the  defendant  to  them  is  such  that  he  may  recover 
possession  of  them  as  his  own,  at  will,^  but  not  otherwise, 
though  the  holder  may  have  deposited  them  in  bank  in  his 
own  name.  If  a  sheriff  should  deposit  in  bank  trust  funds, 
or  money  collected  in  his  official  capacity  for  different  judg- 
ment creditors,  the  act  would  not  be  a  conversion  of  the  funds 
so  as  to  make  them  garnishable  for  his  own  debt,  though  the 
deposit  be  in  his  own  name.-  He  may  defend  and  show  this, 
though  the  bank,  as  garnishee,  acknowledges  the  deposit  to 
be  held  in  the  officer's  individual  name.*  The  oyius  is  on  the 
garnishee,  however,  to  show  that  what  he  acknowledges  to 
hold  is  in  trust,  where  such  answer  may  be  traversed;  and  a 
deed  of  assig'nment  made  in  another  state,  and  not  shown  to 
be  valid,  has  been  held  insufficient  for  the  purpose,*  though 
this  seems  ag-ainst  the  general  doctrine  that  the  burden  of  dis- 
proving  the  garnishee's  answer,  when  traversable,  rests  on 
the  garnishing  part3\* 

A  testator  burdened  a  devise  with  the  requirement  that  the 
devisee  should  pay  a  stated  sum  annually  to  a  third  person. 
By  accepting  the  condition  the  devisee  became  garnishable 
for  the  annual  payment  as  in  case  of  debt.^ 

The  trustees  of  a  legatee  are  not  garnishable  in  a  suit  against 
him,  if  charging  them  would  defeat  the  bequest,  when  the  will 

Prentice  v.   Pleasanton    (Pa.),   8  A.  405 ;  Webb  v.  Peele,  7  id.  247 ;  Tucker 

842  :    Rogers   Locomotive  Works  v.  v.  Clisby,  12  id.  22 :  Williams  v.  Reed, 

Kelly,  88  N.  Y.  234;  Steib  v.  White-  5  id.  480;  Watkins  r.  Otis,  2  id.  88; 

head,   111   111.   247;   Cox  v.  Reeves,  Raynest'.  Lowell,  etc.  Society,  4 Cush. 

78  Ga.  543 ;    Lackett  v.  Rumbaugh,  343 ;  Sparhawk  v.  Cloon,  125   Mass. 

45  Fed.  23 ;  Chase  v.  Currier,  63  N.  H.  263 ;    Daniels  v.   Eldredge,    id.   356 ; 

90;  Banfield  v.  Wiggin,  58  id.  155.  Wells  v.  Hawes,   122  id.  97;  Hearn 

1  McLaughlin  v.   Swan,    18  How,  v.  Crutcher,  4  Yerg.  461 ;  Thompson 

217 ;  Silverwood  v.  Bellar,  8  Whart.  v.  Stewart,  3  Ct.  171 ;  Emery  v.  Davis, 

430 ;   Bank  of  Northern  Liberties  v.  17  Me.  252 ;  Edson  v.  Trask.  22  Vt  18 ; 

Jones,   42   Pa.    St.   536;    Jackson  v.  Witter  v.  Little,   66    la.  431;  Grow 

Bank   of  U.   S.,  10  id.   61 ;  Park  v.  v.  Crittenden.   66   id.   227 ;    Elser  v. 

Matthews,    36    id.    28;    Huntington  Rommel  (Mich.),  56  N.  W.  1106. 

V.  Risden,  43  id.  517 ;   Cook  v.   Dil-  -  Meadowcraft  v.    Aguew,   89    111. 

Ion,  9  id.   407;   Haskell  v.  Haskell,  469. 

8  Met.  (Mass.)  545 ;  Stevens  v.  Bell,  6  '  Id.     But  see  the  next  section. 

Mass.   339;   Davis  v.  Marston,  5  id.  *  Frank  r.  Frank,  6  Mo.  App.  588: 

199 ;    Pierson    v.  Weller,   3  id.  564 ;  Horton  r.  Grant.  56  Miss.  404. 

New  England  Ins.  Co.  v.  Chandler,  ^  Rippeu  v.  Schoen,  96  III.  229. 

16  id.  275 ;  Richards  v.  Allen,  8  Pick.  ^  Red  v.  Powers.  69  Miss.  242. 


266  LIABILITY    TO    GARNISHMENT.  [§§  367,  368. 

is  such  that  the  legatee  himself  cannot  sue  the  trustees  for  any 
part  of  the  bequest.^ 

The  trustee  of  a  naked  trust  may  be  the  garnishee  of  a 
cesttiique  trust?  The  income  for  life  of  a  cestui  que  trust  is 
attachable,* 

§  367.  Deposit. —  A  deposit  to  the  credit  ot  a  second  person 
to  whom  the  bank  acknowledges  indebtedness  by  a  certificate 
may  be  subjected  to  garnishment  in  the  hands  of  the  bank  as 
his  debtor,  in  a  suit  against  hira.^ 

A  bank  may  be  garnished,  in  a  suit  against  a  depositor  of 
money  to  pay  some  of  his  creditors,  when  he  has  not  desig- 
nated what  creditors  are  to  be  paid.^  A  national  bank  can- 
not be  garnished  before  judgment.*^ 

A  depositor  cannot  escape  the  danger  of  having  the  deposit 
attached  in  the  hands  of  the  bank  as  his,  if  he  makes  the  de- 
posit fraudulently  in  the  name  of  another.'  Though  he  be  a 
public  officer,  and  deposit  a  fund  which  he  holds  in  trust,  it 
Avould  not  lie  in  his  mouth  afterwards  to  say  that  the  fund 
was  not  his  private  money  liable  to  attack  by  his  creditors,  if 
the  deposit  had  been  made  in  contravention  of  law.^  The 
public  fund  thus  deposited  could  be  claimed  in  the  suit  of  at- 
tachment, by  a  state,  city,  county  or  whatsoever  corporation 
might  be  the  owner;  but  he  could  not  complain  if  the  fund 
should  be  taken  by  his  creditors  and  he  be  afterwards  made 
to  account  as  a  public  otficer  for  all  that  has  come  into  his 
hands. 

§  368.  "When  a  bank  is  garnished  for  a  deposit,  as  belonging  to 
the  defendant,  he  cannot  say  that  it  belongs  to  his  principal  and 
that  he  deposited  it  in  his  capacity  as  agent,  if  it  stands  in  his 

1  Meek  v.  Briggs  (la.),  54  N.  W.  456 ;  6  Safford  v.  National  Bank,  61  Vt. 
Beck's  Estate,  133  Pa.  St.  51 ;  Guard-    373. 

ians,  etc.  v.  Mintzer,  16  Phila.  449.  "  The  remedy  is  in  equity  in  some 

2  McCann's  Estate,  16  Phila.  224.  states.     So  held  when  a  wife's  deposit 

3  Girard,  etc.  Trust  Co.  v.  Chambers,  was  attached  in  a  suit  against  her 
46  Pa.  St.  485.  husband  when  it  was  alleged  to  be 

4  Exchange  Bank  v.  Gulick,  24  his  and  to  be  fraudulently  in  her 
Kan.  359 ;  Nichols  v.  Goodheart,  5  name.  Himstedt  v.  German  Bank, 
111.  App.  574.     See  Hanaford  v.  Haw-  46  Ark.  537. 

kins  (R.  I.),    28    A.    605;  Trager    v.  « South  Bend  Bank  v.  Gandy,  11 

Feibleman,  95  Ala.  60.  Neb.  431 ;  Johnson  v.  Mason,  16  Mo. 

5  Burgern  Burger,  135  Pa.  St.  499 ;  App.  271.  But  see  Meadowcraft  u. 
Beans  v.  Bullitt,  57  id.  221.  Asnew.  89  111.  469. 


§  368.]  FUNDS    HELD    IN    TRUST    OR    ON    DEPOSIT,  ETC.  267 

own  name.^  So  an  executor,  depositing  the  funds  of  an  estate 
in  his  private  capacity,  is  liable  to  have  them  attached  as  his.^ 

Property  honestly  transferred  by  a  public  officer  to  his 
sureties,  to  secure  them,  is  held  not  liable  to  garnishment  by 
his  creditors.^  But  funds  placed  by  a  debtor  in  the  hands  of 
his  attorney  to  pay  debts  make  the  latter  liable  to  be  charged 
as  garnishee.*  So  if  property  has  been  conveyed  by  a  debtor, 
for  the  purpose  of  having  his  debts  paid,  to  a  person  who  has 
promised  to  pay  them,  the  latter  may  be  garnished  in  a  suit 
against  the  debtor.^  But  the  promise  to  pay  must  be  such  as 
to  render  the  garnishee  indebted.  The  mere  expression  of 
an  intent  to  help  a  friend  out  of  his  debts  would  not  be  such 
an  obligator}''  agreement.^  A  collector  of  money  who  has 
paid  it  to  a  creditor  of  his  principal  without  authorization 
may  be  garnished  by  other  creditors  in  their  suits  against  the 
principal.'^ 

It  is  only  the  defendant's  property  and  credits  which  can  be 
reached  by  the  process  of  garnishment —  not  the  property  and 
credits  which  he  has  in  trust  for  others.  Such  propert}^  may 
be  in  the  hands  of  agents  for  various  purposes  connected  with 
the  trust,  but  those  agents  cannot  be  made  garnishees  in  a 
suit  against  the  defendant  on  his  ow^n  account.^ 

Money  deposited  with  a  clerk  of  a  court  as  security  for  an 
appeal  remains  the  money  of  the  depositor,  subject  to  the 
contingency  of  answering  the  claim  of  the  appellee  in  case 
the  appellant  should  be  adjudged  against ;  and  it  is  therefore 
garnishable.^ 

The  proceeds  of  land  sold  by  a  trustee  under  a  decree  of 
court,  and  distributed  so  far  as  the  ratification  of  the  audit- 
or's account,  and  paid  into  court  under  judicial  order,  and  de- 

1  Reynolds  v.  Smith,  7  Mackey,  27 ;  6  See  Baker  v.  Eglin,  11  Oreg.  333. 
Rozells  V.  Rhodes,  116  Pa.  St.  129;  '^  Felch  u.  Eau  Pleine  Lumber  Co., 
Boatman's  Bank  v.  Overall,  16  Mo.     58  Wis.  431. 

App.  510 ;  Simmons  v.  Austin,  86  Mo.        8  Lackland  v.  Garesche,  56  Mo.  267 ; 

307.  Mcllvaiue  v.   Lancaster,  42  id.    96; 

2  Peoples  Banku  Barbour  (Ky.).  19  White  v.  White,  30  Vt.  338;  Hewitt 
S.  W.  588.  V.   Wheeler,  22  Ct.   557 ;   Keyser  v. 

3  Spear  v.  Rood,  51  Mich.  140 ;  Proc-  Mitchell,  67  Pa.  St.  473 ;  Hall  v.  Will- 
tor  V.  Lane,  62  N.  H.  457.  iams,  120  ]\Iass.  344. 

*Sterrett  v.  Miles,  87  Ala.  472;  La        9  Duulop  v.  Patterson  Fire  Ins.  Co., 
Crosse  Bank  v.  Wilson,  74  Wis.  391.     74  N.  Y.  145. 
5  Chapman  v.  Mears,  56  Yt  389 


268 


LIABILITY    TO    GARNISHMENT. 


[§  309. 


posited  in  bank  to  the  credit  of  the  cause,  cannot  be  subjected 
to  garnishment  as  still  in  the  hands  of  the  trustee;  nor  can 
any  part  of  it,^ 

§369.  Excess  above  lien. —  A  lien  is  not  affected  by  the 
garnishment  of  the  lien-holder.-  In  case  of  a  sale  to  vindicate 
the  lien,  any  surplus  remaining  in  his  hands  may  be  reached 
by  garnishment.*  But  a  garnishor  cannot  compel  the  sale 
of  lien-bearing  property  that  he  may  reach  the  excess.*  He 
cannot  prevent  the  garnishee  from  performing  his  legal  agree- 
ments with  third  persons.^ 

A  trustee  may  be  garnished  for  more  than  the  excess  be- 
yond the  trust,  if  the  trust  is  fraudulent.  After  notice,  if  he 
disposes  of  goods  intrusted  to  him,  he  may  be  held  for  the 
whole  value  of  what  he  held  when  summoned.^  If  the  trust 
is  honest  only  the  excess  can  be  reached.  A  garnishee  in 
possession  as  mortgagee  to  secure  advances  made  or  to  be 
made  may  be  successfully  garnished  for  the  excess  above  the 
advances  made  before  the  service  of  the  summons.'^     He  owes 


1  Mattingly  u  Grimes,  48  Md.  102. 

■^  Mean  v.  New  York,  Housatonic 
&  Northern  R.  R.  Co.,  45  Ct.  225 ; 
Kergin  v.  Dawson,  6  111.  86 ;  Haven 
V.  Low,  2  N.  H.  13 ;  Curtis  v.  Norris, 
8  Pick.  280 ;  Badlam  v.  Tucker,  1  id. 
389;  Sibley  v.  Leffiingwell,  8  Allen, 
584 ;  Grant  v.  Shaw,  IG  Mass.  341 ; 
Picquet  v.  Swan,  4  Mason,  448 ; 
Mitchel  V.  Byrne,  6  Rich.  (S.  C.)  171; 
Central  Bank  v.  Prentice,  18  Pick. 
396;  Callender  v.  Furbish,  46  Me. 
226 ;  Nolen  v.  Crook,  5  Humph.  312 ; 
Kirkman  v.  Hamilton,  9  Martin 
(La.),  297;  Schofield  v.  Sanders,  25 
Vt.  181;  Whitney  v.  Dean,  5  N.  H. 
249;  Garland  v.  Sperling  (N.  M.),  32 
P.  499;  Patterson  v.  Harland,  12 
Ark.  158;  Curtis  v.  Raymond,- 29  la. 
52 ;  First  N.  Bank  v.  Perry,  id.  266. 
ComjKire  Burnham  v.  Doolittle,  14 
Neb.  214;  Carter  v.  Fenstemaker,  14 
Ohio  St.  457. 

3  Chesapeake  Co.  v.  Sparks,  18  Fed. 
281 ;  Davis  v.  Wilson,  52  la.  187. 

i  Howard  v.  Card,  9  Me.  353. 


5  Wart  V.  Mann,  124  Mass.  586; 
Owen  V.  Estes,  5  id.  330 ;  Mahew  v. 
Scott,  10  Pick.  54 ;  Troxall  v.  Apple- 
garth,  24  Md.  163 ;  Baltimore  &  Ohio 
R.  Co.  V.  Wheeler,  18  id.  372 ;  Chapia 
V.  Jackson,  45  Ind.  153;  Truitt  v. 
Griffin,  61  III.  26 ;  Cutters  v.  Baker, 
2  La.  Ann.  272 ;  Dryden  v.  Adams,  29 
la.  195.  See  Smith  v.  Pickett,  7  Ga. 
104 ;  Grain  v.  Gould,  46  111.  239 ;  Mc- 
Coy V.  Williams,  6  id.  584. 

6  Simon  v.  Ash,  1  Tex.  Civ.  App.  202. 
■^McCown   V.  Smith  (Wis.),   54  N. 

W.  31 ;  Carter  v.  Rewey,  62  Wis.  556 ; 
Bank  v.  Damm,  63  id.  256 ;  Dieter  v. 
Smith,  70  111.  168;  Preble  v.  Conger, 
66  id.  370 ;  Davenport  v.  McChesney, 
86  N.  Y.  242 ;  Brown  v.  Keifer,  71  id. 
610;  Robinson  v.  Williams,  22  id. 
380 ;  Divver  v.  McLaughlin,  2  Wend. 
596 ;  20  Am,  Dec.  655,  note ;  Hobart 
V.  Jouvett,  6  Cush.  105;  Bernard 
V.  Moore,  8  Allen,  273 ;  Sullivan  v. 
Lamb,  110  Mass.  167;  Chesapeake 
Guano  Co.  v.  Sparks,  18  Fed.  281. 
See  Schuerman  v.  Foster,  82   Wis. 


§  370.]  FUNDS    HELD    IN    TRUST    OK   ON   DEPOSIT,    ETC.  269 

the  excess  to  the  defendant  from  the  time  conditions  were 
broken  when  holding  personal  property  as  mortgagee,  and 
therefore  may  be  garnished.^  Any  excess  after  foreclos- 
ure is  subject  to  garnishment  in  the  mortgagee's  hands  in 
a  suit  against  the  mort^ragor.^  When  a  mortgagee  has  been 
garnished  for  the  excess,  a  second  attacher  cannot  divest  the 
first  of  his  right  by  paying  the  mortgage,  in  Iowa.' 

^  370.  As  in  case  of  the  garnishment  of  a  trustee  above 
mentioned,  that  of  the  mortgagee  may  be  for  more  than  the 
excess  if  he  holds  fraudulently.  Mortgagees  in  possession, 
holding  through  a  common  agent,  may  be  jointly  sued  by  the 
mortgagor's  creditors  who  charge  the  mortgages  to  be  fraudu- 
lent.*  And  it  is  held  that  creditors  under  such  circumstances 
are  not  estopped  by  their  having  proved  their  claims  in  assign- 
ment proceedings.*  If  the  mortgagee  is  not  in  possession,  the 
excess  is  not  to  be  reached  by  garnishment.'^  If  he  has  posses- 
sion, but  not  under  the  mortgage  as  mortgagee,  he  may-  be 
charged  for  the  property  itself.'  A  bank  may  be  garnished 
for  excess  of  the  proceeds  of  notes  received  as  collateral  se- 
curity and  sold  by  it.^  But  not  if  the  defendant  ow^es  the 
garnishee  and  the  excess  is  held  to  secure  the  debt.^  The  ex- 
cess of  an  assigned  note  over  what  is  due  the  assignee  may  be 

319 ;    Younkin    v.    Collier,    47    Fed.  Wilson,  52  id.  187 ;  Hoffman  v.  Weth- 

571.    The  pledgee  is  garnishable  only  erell,  42  id.  89 ;  McConnell  v.  Den- 

f or  excess.    Warder  r.  Baker,  67  Wis.  ham,   72   id.   494.     But  the  garnish- 

409;    Mensing   v.    Engelke,    67   Tex.  ment  creates  no   lien  on  the  niort- 

532.     C'ojnpare  Warner  v.  Bank,  115  gaged  property  itself;   only   on  the 

N.  Y.  251 ;   Trust  fund :  See  gener-  excess    of    value :     Buck-Renier   v. 

erally,  Seipe's  Estate,  In  re,  11  Pa,  Merrill,  supra;  Mooar  v.  Walker,  46 

Co.  Ct.  R  29.  la.  164. 

1  Root  V.  Davis  (Ohio),  36  N.  E.  668 ;  <  Black  v.  Dawson,  82  Mich.  485, 
Lindeman  v.  Engman,  36  Ohio  St.  1,  distinguishing  Lyon  v.  Balentine,  63 
9  ;  Robinson  v.  Fitch,  26  id.  659,  662 ;  id.  97. 

Carty  v.  Fenstemaker,  14  id.  457, 461 ;  ^  id. ;  Detroit  Stove  Works  v.  Os- 

Morgan  v.  Spangler,  20  id.  38 ;  Kings-  mun,  74  Mich.  7 :  Parsons  v.  Clark,  59 

bury  V.  Phelps'  Adm'r,  Wright  (O.),  id.  414;  Barnum  v.  Circuit  Judge,  id. 

371.  272. 

2  Doggett  V.  Bates,  26  111.  App.  369 ;  6  Fountain  v.  Smith,  70  la.  283. 
Bragunier  v.  Beck,  41  Kan.  542.  "  Folkerts  v.  Standish,  55  Mich.  463. 

3  Buck-Renier  n  Merrill,  82  la.  353.  »  National  Bank  v.  Chase,  71  la. 
Under  statutory  provision   the  rule  120. 

was  formerly  different.  Id.;  Doau  ^Schuler  i\  Israel,  120  U.S.  506; 
V.   Garretson,   24  la.    351 ;    Davis  v.     Mitchell  v.  Green,  62  N.  H.  588. 


270  LIABILITY    TO    GARNISHMENT.  [§§  371,  372- 

attached  in  his  hands  as  garnishee.^  When  notes  secured  by 
mortgage  have  been  subjected  to  garnishment,  the  garnishor 
may  foreclose  as  though  they  had  been  assigned  to  him.  - 

§  371.  Constructive  i)ossession. —  If  possession  is  merely  con- 
structive, the  possessor  cannot  be  garnished.'  Possession  by 
the  garnishee  is  not  deemed  constructive  in  such  a  sense  as 
to  make  him  unchargeable,  when  he  holds  by  a  clerk  or  other 
agent.*  What  his  agent  holds  he  holds;  and  he  is  amenable 
to  the  process  in  a  suit  against  the  defendant  owner.  This  is 
apparent  in  consideration  of  the  fact  that  those  who  hold  under 
him  and  for  him  are  not  garnishable  because  of  such  posses- 
sion in  a  suit  against  their  immediate  principal,  for  the  mani- 
fest reason  that  the  funds  are  not  his.^ 

lY.  Conditional  Obligation. 

§  372.  Wlien  not  licible. —  When  the  owner  of  property  or 
credits  in  a  third  person's  hands  cannot  sue  without  the  per- 
formance of  some  condition,  such  third  person  cannot  be  made 
a  garnishee  at  the  suit  of  a  creditor  of  the  owner  against  the 
owner.^  The  garnishee  may  answer  that  he  has  nothing  de- 
liverable to  the  defendant,  or  over  which  the  latter  has  con- 
trol. But  if  onl}^  a  notice  or  some  slight  preliminary  action 
is  requisite  on  the  part  of  the  owner  to  gain  possession  of 
goods  or  to  render  a  credit  actionable,  his  creditor  may  sum- 
mon the  third  person  holding  or  owing  and  hold  him  as  gar- 
nishee.'' The  difference  is  between  the  existence  of  a  condition 
precedent  to  owning,  and  a  condition  precedent  to  right  of 

1  Nicholson  v.  Walker,  25  Mo.  App.  of  Northern  Liberties,  44  id.  253 ; 
368.  Wright  v.  Foord,  5  N.  H.  178. 

2  Alsdorf   V.  Reed,  45  Ohio  St.  653.  6  Curtis  v.  Alvord,  45  Ct.  569 ;  Will- 

3  Smalley  v.  Miller,  71  la.  90 ;  Nick-  iams  v.  Young.  46  la.  140 ;  Maduel  v. 
erson   r.  Chase,   123   Mass.  296;  An-  Mousseaux,  29  La.  Ann.  228. 

drews  v.  Ludlow,  5  Pick.  28.  "  Ware  v.  Gowen,  65  Me.  534 ;  Zim- 

•*  Nichols  V.  Goodheart,  5  111.  App.  mer  v.  Davis,  35  Mich.  39 ;  Staples  v. 

574 ;  Ward   v.  Lamson,  6  Pick.  358 ;  Staples,  4  Me.  532 ;  Woodbridge  v. 

McDonald    v.    Gillet,    69    Me.    271 ;  Morse,  5   N.   H.  519 ;  Quigg  v.  Kitt- 

Childs  V.  Digby,  24  Pa.  St.  23.  redge,  18  id.  137 ;  Corey  v.  Powers, 

SMuith   V.   Schardin,   4  Mo.  App.  18  Vt.  588;  Thayer  v.  Sherman,   13 

403 ;    Farmers',    etc.    Nat.    Bank   v.  Mass.  441 :  Mann   v.  Buford,  3  Ala. 

King,  57   Pa.  St.  202;  McCormac  v.  312;  Riley  v.  Hirst,  2  Pa.  St.  346. 

Hancock,  2   id.  310;  Jones  v.   Bank 


373.] 


CONDITIONAL    OBLIGATION. 


271 


possession.  It  is  when  a  condition  of  the  latter  sort  is  the 
only  obstacle  that  the  creditor  may  disregard  it  and  hold  the 
garnishee. 

TThere  indebtedness  not  only  depends  upon  conditions  but 
is  to  be  novated  when  it  shall  become  due  by  drafts  payable 
to  the  garnishee  and  indorsed  by  him  to  the  defendant,  it  can- 
not be  subjected  to  garnishment.^ 

§  373.  The  general  rule  is  that  the  garnishee  is  not  charge- 
able unless  the  defendant  could  recover  of  him  what  the 
plaintiff  seeks  to  secure  by  garnishment.-  Nor  is  he  charge- 
able on  contingent  liability  to  the  defendant  in  damages, 
though  the  latter  may  have  a  good  cause  of  action  and  the 
damages  may  be  recoverable.*  Kor  is  he  chargeable  as  a  life 
insurance  company,  on  the  policy,  though  he  must  eventually 


1  Larrabee  v.  Walker,  71  Me.  441. 

2  Henry  v.  Wilson  (la.),  51  N.  W. 
1157 ;  Victor  v.  Hartford  Insurance 
Co.,  33  la.  210;  Webster  v.  Steele, 
75  111.  544 ;  Pierce  v.  Carlton,  12  id. 
358 ;  Davis  v.  Pawlette,  3  Wis.  300 ; 
Lewis  V.  Smith,  2  Cr.  C.  C.  571 ;  Geer 
V.  Chapel,  11  Gray,  18;  Fellows  v. 
Duncan,  13  Met.  (Mass.)  332 ;  Maine, 
etc.  Ins.  Co.  v.  Weeks,  7  Mass.  438; 
Doyle  V.  Gray,  110  id.  206 ;  Nutter  v. 
Framingham,  etc.  R.  Co.,  132  id.  427. 
White  V.  Jenkins,  16  id.  62 ;  Brigden 
V.  Gill,  id.  522;  Caldwell  v.  Coates, 
78  Pa.  St.  312 ;  Rundlet  v.  Jordan,  3 
Me.  47;  Hoyt  v.  Swift,  13  Vt.  129; 
]\Iorey  v.  Sheltus,  47  id.  342 ;  Hutch- 
ins  V.  Hawley,  9  id.  295 ;  Kettle  v. 
Harvey,  21  id.  301 ;  Cobb  v.  Bishop, 
27  id.  624 ;  Haven  v.  Wentworth,  2 
N.  H.  93 ;  Adams  v.  Barrett,  id.  374 ; 
Piper  V.  Piper,  id.  439 ;  Greenleaf  v. 
Perrin,  8  id.  273 ;  Paul  v.  Paul,  10  id. 
117;  Paul  V.  Reed,  52  id.  136;  Patton 
V.  Smith,  7  Iredell,  438;  Cook  v. 
Walthall,  20  Ala.  334;  Harrell  v. 
Whitman,  19  id.  135;  Mims  r.  Par- 
ker, 1  id.  421 ;  Foster  v.  Walker,  2  id. 
177;  Hall  v.  Magee,  27  id.  414;  Lun- 
die  V.  Bradford,  26  id.  512 ;  Nesbitt  r. 
Ware,  30  id.  68 ;  Powell  v.  Sammous, 
31  id.  552 ;  Lewis  r.  Dubose,  29  id. 


219 ;  McGehee  v.  Walke,  15  id.  183 ; 
Walke  V.  McGehee,  11  id.  273;  Jones 
V.  Crews,  64  id.  368;  Pressnall  v. 
Mabray,  3  Porter,  105;  Smith  v. 
Chapman,  6  id.  365;  Allen  v.  Mor- 
gan, 1  Stewart,  9 ;  Williams  v.  Gage, 
49  Miss.  777 ;  Turner  v.  Armstrong,  9 
Yerg.  412 ;  Wetherill  v.  Flanagan,  2 
Miles,  243 ;  Bridges  v.  North,  22  Ga 
52;  Estill  v.  Goodloe,  6  La.  Ann.  122; 
Carlos  V.  Alvord,  45  Ct.  569 ;  Saner 
V.  Nevadaviile,  14  Colo.  54. 

3  Hemmeuway  v.  Pratt,  23  Vt.  332 ; 
Barker  v.  Esty,  19  id.  131;  Fish  v. 
Field,  id.  141 ;  Lomerson  v.  Huffman, 
1  Dutch.  625;  Foster  v.  Dudley,  10 
Fos.  463 ;  Boardman  v.  Roe,  13  Mass. 
104;  Thayer  v.  Southwick,  8  Gray, 
229 ;  Rand  v.  White  Mountains  R.  R., 
40  N.  H.  79 ;  McKean  v.  Turner,  45 
id.  203;  Despatch  Line  v.  Bellamy 
Manuf.  Co.,  12  id.  205;  Getchell  v. 
Chase,  37  id.  106 ;  Leefe  v.  Walker, 
18  La.  1 ;  Peet  v.  McDaniel,  27  La. 
Ann.  455 ;  Ransom  v.  Hays,  39  Mo. 
445 ,  Graham  v.  Moore,  7  B.  3Ion.  53 ; 
Hugg  V.  Booth,  2  Iredell,  282 ;  Dea- 
ver  V.  Keith,  5  id.  374 ;  Gove  v.  Var- 
rell,  58  N.  H.  368 :  Eastman  v.  Thayer, 
60  id.  575;  Burgess  i\  Capes,  32  III. 
App.  372 ;  Capes  v.  Burgess,  135  111. 
6L 


272 


LIABILITY    TO    GARNISHMENT. 


[§  374. 


become  indebted.^  Bat  where  the  damages  arise  ex  contractu 
and  are  certain  and  due,  they  may  be  reached .^ 

Contingent  liabihty  on  contract  affords  no  ground  for  gar- 
nishment. So  long  as  it  is  uncertain  whether  the  garnishee 
owes  the  defendant  he  cannot  be  charged,  as  the  attaching 
creditor  can  have  no  greater  right  by  subrogation  than  the 
defendant  has  directly  against  the  garnishee.  The  rule  that 
there  can  be  no  garnishment  judgment  on  a  conditional  con- 
tract or  contingent  obligation  is  too  well  settled  to  require 
comment.*  Debt  is  different  from  attached  property,  which, 
under  some  circumstances,  may  be  held  till  uncertain  owner- 
ship has  been  settled.'* 

§  374.  This  rule  does  not  preclude  the  garnishment  of  one 
who  is  certainly  obligated  to  pay  at  a  future  time ;  the  period 


1  Day  V.  Insurance  Co.,  Ill  Pa.  St. 
507 ;  56  Am.  Rep.  297. 

2  Girard  Fire  Ins.  Co.  v.  Field,  45 
Pa.  St.  129 ;  Boyle  v.  Franklin  Fire 
Ins.  Co.,  7  Watts  &  Serg.  76 ;  Frank- 
lin Fire  Ins.  Co.  v.  West,  8  id.  350 ; 
Knox  V.  Protection  Ins.  Co.,  9  Ct.  430 ; 
Northwestern  Ins.  Co.  v.  Atkins,  3 
Bush,  328. 

3  Nickerson  v.  Nickerson,  80  Me. 
100;  Jordan  v.  Jordan,  75  id.  100  r 
Norton  v.  Soule,  75  id.  385 ;  Otis  v. 
Ford,  54  id.  104;  Williams  v.  Rail- 
road Co.,  36  id.  201 ;  Cutter  v.  Per- 
kins, 47  id.  557 ;  Edwards  v.  Roepke, 
74  Wis.  575 ;  Foster  v.  Singer,  69  id. 

'372;  Bishop  v.  Young,  17  id.  46; 
Bates  V.  New  Orleans,  etc.  R.  R.  Co., 
4  Abb.  Pr.  72 ;  Clement  v.  Clement, 
19  N.  H.  460;  Say  ward  v.  Drew,  6 
Me,  263 ;  Roberts  v.  Drinkard,  3  Met. 
(Ky.)  309 ;  Wilder  v.  Shea,  13  Bush, 
128 ;  Katz  v.  Sorsby,  34  La.  Ann.  588 ; 
Maduel  V.  Mousseaux,  29  id.  228; 
Russell  V.  Clingman,  33  Miss.  535 ; 
Williams  v.  Marston,  3  Pick.  65 ; 
Guild  V.  Holbrook,  11  id.  101 ;  Faulk- 
ner v.  Waters,  id.  473 ;  Taber  v.  Nye, 
12  id.  105 ;  Rick  v.  Waters,  22  id.  563 ; 
Wentworth  v.  Whittemore,  1  Mass. 
471;  Davis  v.  Ham,  3  id.  33;  Froth- 
ingham  r.  Haley,  id.  68;  Willurd  v. 


Sheafe,  4  id.  235 ;  Wood  v.  Partridge, 
11  id.  488;  Grant  v.  Shaw,  16  id.  341 ; 
Hancock  v.  Coyler,  99  id.  187 ;  Wood 
V.  Buxton,  108  id.  102 ;  Potter  v.  Cain, 
117  id.  238;  Meacham  v.  Corbitt,  3 
Met.  (Mass.)  252;  Coburn  v.  Hartford, 
38  Ct.  29*0 ;  Strauss  v.  Railroad  Co.,  7 
W.  Va.  368 ;  Webster  Wagon  Co,  v. 
Peterson,  27  id.  314;  Baltimore,  etc. 
R.  Co.  V.  McCuUough,  12  Gratt.  595 ; 
Hearne  v,  Keath,  63  Mo,  84 ;  Thorp 
V.   Elliott,   42    Midi.    201;    Martz  v. 
Detroit  Ins.  Co.,  28  id.  201 ;  Spears  v. 
Chapman,   43    id.    541 ;    Webber   v. 
Bolte,  51  id.  113;  Smith  u  Holland 
81  id.  471 ;  Lyon  v.  Kneeland,  58  id 
570;  Walker  v.  Railroad  Co.,  49  id 
446 ;  Thompson  v.  Jarvis,  39  id,  695 
Hackley  v.  Kanitz,    id.  398;    Cairo, 
etc.  R.  Co.  n  Hindman,  85  III.  521 
Cairo,  etc.  R  Co.  v.  Killenburg,  82  id 
295;    Ives  v.  Vanscovoc,  81  id.  120 
Nashville  v.  Insviranee  Co.,  58  Tenn 
296 ;  Ross  v.  McKinney,  2  Rawle,  227 
Burke    v.   Whitcomb,    13   Vt    421 
Dickinson  v.  Dickinson,  59  id.  678 
The  Lizzie  Williams,   11   Fed.   619 
McCarty  v.  Steam  Propeller,  etc.,  4 
id.  818. 

4  Dower  v.  Curtis,  25  Vt  650 ;  Smith 
V.  Cahoon.  3V  Me.  281;  Dwinel  v. 
Stone,  30  id.  384, 


§  374.] 


CONDITIONAL    OBLIGATION. 


273 


of  credit  constitutes  no  condition  that  renders  the  obligation 
contingent ;  the  defendant's  debtor  may  therefore  be  charged 
to  pay  into  court  when  the  debt  shall  have  become  due.^ 
There  are  circumstances  in  wliich  the  contingency  may  be 
questionable;  the  future  payments  may  depend  upon  inter- 
mediate enjo3Miient  of  the  consideration  of  the  promise,  as  in 
case  of  rent  contracts  and  the  like.^ 

The  stakeholder  of  a  bet  may  be  garnished  in  a  suit  against 
either  depositor  for  the  sum  deposited,  because  his  agreement 
to  pay  it  over  eventually  to  the  winner  is  immoral.'* 

"When  nothing  stands  between  the  debt  due  and  payment 
except  notice  or  some  similar  preliminary,  the  garnishment 
may  take  place  at  once.  Process  may  be  served  upon  an  in- 
surance company  before  proof  of  loss  by  fire,*  though  it  can- 
not be  charged  before.^  Though  an  agent  may  have  earned 
his  commissions  on  goods  sold  by  him,  his  principal  is  not 
chargeable  as  garnishee  for  them  in  a  suit  against  the  agent, 
if  the  proceeds  have  not  been  paid  over  so  that  liability  for 
them  has  become  complete.^ 

The  rule  as  to  contingent  liability  is  not  affected  by  the 
circumstance,  when  it  occurs,  that  the  garnishee's  liability  is 
to  others  as  well  as  to  the  defendant.^ 


1  Mobile  R  Co.  v.  Turner,  91  Ala. 
213 ;  Seibs  v.  Englehart,  78  id.  508 ; 
Cottrell  V.  Varnuru,  5  id.  229 ;  Branch 
Bank  v.  Poe,  1  id.  396 ;  Dunnegau  v. 
Byers,  ITArk.  492;  Faj  v.  Smith.  25 
Vt.  (510  :  Webber  r.  Doran.  70  Me.  140  ; 
Ware  v.  Gowen,  65  id.  534 ;  Say  ward 
V.  Drew,  6  id.  263 ;  W^illard  v.  Sheaf e, 
4  Mass.  235 ;  Steuart  v.  West,  1  Harr. 
&  J.  536;  Fulweiler  v.  Hughes,  17 
Pa.  St.  440 ;  W^alker  v.  Gibbs,  2  Dall, 
211;  Peace  v.  Jones,  3  Murphy,  256 
Wilcus  V.  Khng,  87  111.  107  ;  Miller  v. 
Scoville,  35  111.  App.  385. 

2McMinn  v.  Hall,  2  Tenn.  328. 
Childress  v.  Dickens,  8  Yerg.  113; 
Thorp  V.  Preston,  42  Mich.  511  (with 
reference  to  future  rents);  Ordway 
V.  Remington,  12  R.  I.  319  (as  to  the 
time  when  rents  became  garnish- 
18 


able) ;  Jones  v.  Crews,  64  Ala.  368 
(future  payment  in  cotton);  Peterson 
V.  Loring,  135  Mass.  397  (as  to  gar- 
nishment for  freight  not  due  till 
goods  delivered). 

3  Ball  V.  Gilbert,  12  Met.  397.  See 
Wimer  v.  Pritchartt,  16  Mo.  252 ;  Ed- 
son  V.  Pawlet,  22  Vt.  293 ;  Reynolds 
V.  McKiuuey,  4  Kan.  94;  Merchants' 
Savings,  etc.  Co.  v.  Goodrich,  75  III. 
560 ;  Clark  v.  Gibson,  12  N.  H.  386 ; 
Speise  v.  McCoy,  6  Watts  &  Sarg. 
482 ;  Smoot  v.  State,  18  Ind.  19. 

*  Phoenix  Ins.  Co.  v.  W'illis  (Tex.), 
6  S.  W.  825. 

5  Hurst  V.  Fire  Ins.  Co.,  81  Ala.  174. 

6  Sandblast  Co.  v.  Parsons,  54  Ct. 
310. 

^VoUmer  v.  Chicago,  etc.  Co.,  86 
Wis.  805 ;  Sanb.  &  B.  Stat,  §  1815. 


27i  LIABILITY    TO    GARNISHMENT.       ^       [§§  375,  376. 

§  375.  Lidbility  to  third  liersons. —  A  debtor  of  defendant 
who  has  contracted  to  pay  to  another  person  has  been  held 
not  liable  to  garnishment  in  the  suit  of  another  creditor 
against  the  defendant,  when  it  appeared  that  no  demand  had 
been  made  by  the  latter  subsequent  to  such  contract.^ 

A  vendee  may  be  garnished  for  an  unpaid  balance  in  a 
suit  against  the  vendor,  though  instructed  to  pay  to  a  third 
.person,^  because  he  owes  the  vendor  —  not  the  other.^ 

A  chattel  mortgagee  is  not  chargeable  as  garnishee  for 
goods  which  he  has  held  under  his  mortgage  but  has  conveyed 
to  another  several  months  before  summons ;  and  no  question 
of  the  validity  of  the  mortgage  can  be  entertained.*  "When 
be  still  holds  tlie  property  he  is  not  chargeable  in  a  suit 
against  the  mortgagor,  after  condition  broken,  under  a  con- 
tract to  purchase  at  a  time  and  place  agreed  upon,  when  the 
property  has  not  been  redeemed  by  the  debtor.^ 

The  purchaser  of  mortgaged  property  does  not  become  in- 
debted to  the  mortgagee  though  he  may  have  promised  the 
vendor  that  he  would  pay  the  mortgage  debt,  and  though 
the  property  remains  bound,  and  hence  an  attachment  creditor 
in  a  suit  against  the  mortgagee  cannot  make  the  purchaser  a 
garnishee.^ 

§  376.  Judgment  deMor. —  A  judgment  debtor  may  be  gar- 
nished after  his  appeal  if  no  supersedeas  bond  has  been  filed ;  "^ 
but  money  due  on  a  decree  of  a  court  of  equit}'-  has  been  held 
not  liable  to  attachment.^ 

A  judgment  cannot  be  reached  by  garnishment  if  it  does 

1  Elmer  v.  Welch,  47  Ct.  56 ;  Cen-  4  Spitz  v.  Tripp,  86  Wis.  25 ;  Wis. 
ter  u  McQuesten,  24  Kan.  480  ;  Stin-    Rev.  Stat.,  §  2768. 

son  V.  Caswell,  71  Me.  510..  5  Garland  u  Sperling  (N.  M.),  30  P. 

2  Kedthley  v.  Pitman,  40  Mo.  App.  925.  It  is  because  he  does  not  cer- 
596 ;  Besshears  v.  Rome,  46  Mo.  501.  tainly  owe.      Hopkins  v.  Dinan,  48 

3  Nicholson  v.  West,  25  Mo.  App.  Mich.  612;  Edney  v.  Willis,  23  Neb. 
368;  Ridge  f.  Olmstead,  73  Mo.  578;  56;  Cobm-n  v.  Ansart,  3  Mass.  319; 
Cress  V.  Blodgett,  64  id.  449  ;  Holt  v.  Scales  v.  Southern  Hotel,  37  Mo.  520 ; 
DoUarhide,    61    id.    433;    Brown   v.  Weil  u  Tyler,  43  id.  581. 

Brown,  47  id.  130.     A  sum  awarded        ^  Hartman  v.  Olvera,  54  Cal.  61. 
for  the  support  of  a  person  but  not        '  Phillips   v.    Germon,   43  la.  lOl. 
applied  was  held  liable  to  garnish-    Sea  Burke  v.  Hance,  76  Tex.  76 ;  Citi- 
ment.     Dickinson   v.   Dickinson,   59    zens'  Bank  v.  Hancock,  35  La.  Ann. 
Vt.  678.  41 ;  Despain  v.  Crow,  14  Oreg.  404. 

8  Black  V.  Black,  32  N.  J.  Eq.  74. 


§  377.]  PARTNERSHIP    LIAEILITY.  275 

not  belont?  to  the  defendant,  though  standino;  in  his  name.^ 
Money  in  suit  has  been  attached  in  the  hands  of  the  defend- 
ant, who  in  another  suit  brought  against  the  plaintiff  was 
made  garnishee,  both  suits  being  in  one  court.^  It  has  been 
held  that  a  judgment  creditor  may  be  reached  by  garnish- 
ment, though  the  judgment  has  not  been  entered  and  signed.^ 
And  when  he  has  been  garnished  he  is  not  released  by  the  set- 
ting aside  of  the  judgment  or  the  relinquishment  of  it.* 

It  has  been  held  that  a  judgment  in  a  federal  court  cannot 
b.3  attached  in  a  state  court ;  ^  that  a  judgment  debtor  in  a 
court  of  record  cannot  be  garnished  by  process  from  a  jus- 
tice's court,®  but  both  positions  seem  not  well  supported. 
The  latter  has  been  denied.^ 

Y.  Partnership  Liability.^ 

§377.  Debt  due  firm. —  What  is  due  a  partnership  cannot 
be  subjected  to  garnishment  as  a  credit  due  one  of  the  firm.^ 
In  an  attachment  suit  against  him,  a  debtor  to  the  partnership 
cannot  be  made  a  garnishee.  Such  debtor  owes  nothing  to 
any  one  member  of  the  firm. 

If  a  suit  is  brought  against  a  member  of  a  firm  to  whom 
the  firm  is  indebted,  what  is  due  him  may  be  garnished,  pro- 
vided the  garnished  partners  be  within  the  jurisdiction.^"  A 
creditor  may  levy  upon  the  interest  of  one  partner  in  tangible 

1  Beaver  Valley  Bank  v.  Cousins,  34  P.  997 ;  Dessauer  v.  Koppin  (Colo. 

67  la.  310.  App.),  32  P.  182 ;  Craig  v.  Smitli,  10 

-'Smith  V.  Carroll,  17  R.  I.  125.  Colo.  220;  Bank  v.  Ford,  7  id.  314; 

a  Holtby  V.  Hodgson,  21  Q.  B.  Div.  Bowen  v.  Crow,  16  Neb.  556 ;  Will- ' 

103.  iams  v.  Gage,  49  Miss.  777  ;  Mobley  v. 

4  Bell  V.  Wood,  87  Ky.  56.  Loubat,  7  How.  (Miss.)  318 ;  Ford  v. 

5  Thomas  v.  Woolridge,  2  Woods,  Detroit  Dry  Dock  Co.,  50  Mich.  358 ; 
667;  Perkins  v.  Guy,  2  Mont.  16.  Winston  v.  Ewing,  1  Ala.  129;  Pullis 

6  Clodfelter  v.  Cox,  1  Sneed,  330.  v.  Fox,  37  Mo.  App.  592;  Kingsley  v. 
"Luton  V.  Hoehu,  72  111.  81.  Mo.  Fire  Co.,  14  Mo.  467;  Sheedy  v. 
6  See  %%  249-254.  Second  Nat.  Bank,  62  id.  17  ;  Church 
9  Stillings  V.  Young  (Mass.),  37  N.  E.  v.  Knox,  2  Ct.  514 ;  Atkins  v.  Pres- 

175 ;  Bostvvick  v.  Bass,  99  Mass.  469 ;  cott,  10  N.  H.  120 ;  Towne  v.  Leach, 

Hayden  v.  Nat.  Bank  of  N.  Y.,  130  32  Vt.  747 ;  Barry  v.  Fisher,  39  How. 

N.  Y.  146 ;  Crescent  Ins.  Co.  v.  Beer,  Pr.    521.      See    Stein    v.   Seaton,  51 

2:?   Fla.    50 ;    Trickett  r.   Sloore,   84  la.  18. 

Kau.  755 ;  Jones  v.  Langhorne  (Colo.),  ^o  Myers  v.  Smith,  29  Ohio  St.  120. 


276  LIABILITY    TO    GARNISHMENT.  [§§  378,  379. 

property  belonging  to  the  partnership,^  but  a  demand  due  in 
part  only  to  the  principal  defendant  cannot  be  made  the  sub- 
ject of  garnishment.^ 

§  378.  Onl}'^  a  partner's  remaining  share,  after  the  firm's 
debts  are  settled,  can  be  attached  in  third  hands  to  pay  his 
debts.  When  that  is  thus  attached  the  other  members  of  the 
firm  must  be  cited,  in  some  states,  before  the  garnishee  can 
be  charged.''  After  equity  proceedings  are  concluded,  a  part- 
nership receiver  who  has  money  left  in  his  possession  belong- 
ing to  a  partner  may  be  charged  as  trustee  in  a  suit  against 
such  partner.^  A  partner  is  not  garnishable  on  the  unliqui- 
dated accounts  of  his  firm.* 

As  a  debt  due  a  firm  cannot  be  reached  by  the  garnishment 
of  the  debtor  in  a  suit  against  one  of  the  partners,  the  court 
cannot,  in  such  suit,  compel  the  other  partners  to  appear.^ 
But  in  a  suit  against  a  firm,  the  debtor  of  a  partner,  or  rather 
the  holder  of  money  belonging  to  a  partner,  was  held  garnish- 
able.^  If  the  garnishee  is  indebted  to  one  or  more  of  several 
defendants  he  will  be  charged.^ 

§  379.  It  is  held  that  a  joint  debt  cannot  be  subjected  to 
garnishment  if  there  is  service  on  but  one  of  the  debtors;^ 

lid.;  Nixon  v.  Nash,  13  Ohio  St.  Mo.  17;  Sweet  v.  Read,  13  R.  L  131. 

648.     See  Garnishment  in  Execution.  The   dismissal   from  the  case  of  a 

2  Markham  v.  Gehan,  43  Mich.  74.  partner  because  he  is  a  minor  does 

3  Henderson  v.  Cashman,  85  Me.  not  impair  the  garnishment  (Bethel 
437;  Look  v.  Brockett,  74  id.  ;547;  v.  Chipman,  57  Mich.  379);  nor  a 
Parker  v.  Wright,  66  id.  393 ;  Bur-  partner's  taking  the  benefit  of  an  in- 
nell  V.  Weld,  59  id.  433 ;  O'Conuell  v.  solvent  law.  Tiiomas  v.  Brown,  67 
Ackerman,   63   Md.   337 ;  Frizzell  v.  Md.  513. 

Willard,  37  Ark.  478;   Landsberg  v.  ''Pearce  v.   Shorter,  50  Ala.   318; 

Bullock,    79    Mich.    378;     Kennedy  Stevens  v.  Perry,  113  Mass.  380. 

V.  McLellan,  76  id.  598 ;  Hamilton  v.  «  Parker  v.  Guillow,  10  N.  H.  103 ; 

Rogers,  67  id.    135 ;  Ryon  v.  Wyn-  Caignett    v.  Gilband,   3  Yeates,   35 ; 

koop,  148  Pa.  St.  188.     See  Robinson  Locket  v.  Child,  11  Ala.  640;  Whit- 

V.  Tevis,  38  Cal.  611.  ney  v.  Muuroe,  19  Me.  43;  Thompson 

i  Willard  v.  Decatur,  59  N.  H.  137.  v.  Taylor,  13  id.  430. 

oSee  Kneer  v.  Hoffman,  65  Pa.  St.  9  Baldwin  v.  Ferguson,  35  111.  396; 
136 ;  Laughlin  v.  Maybin,  15  Phila.  Hawes  v.  Waltham,  18  Pick.  451 ; 
68;  Alter  v.  Brooke,  9  id.  358;  Birt-  Hirth  v.  Pfeifle,  43  Mich.  31;  Well- 
whistle  V.  AVoodward,  17  Mo.  App.  over  v.  Soule,  30  id.  481 ;  Hoskins  v. 
277.  Johnson,  34  Ga.  635;  Wilson  v.  Al- 

"  Myers  v.  Smith.  39  Ohio  St.  130 ;  bright,   3   G.    Greene,  135 ;  Pettes  v. 

Sheedy  v.  Second  National  Bank,  63  Spalding,  31  Vt.  66 ;  Rix  v.  Elliott,  1 


§  379.]  TAETNEKSHIP    LIABILITY.  277 

but  other^vise  if  the  debt  be  joint  and  several.^  If  one  of  the 
joint  and  several  obligors  be  garnished,  another  who  is  not 
may  pay  the  debt  to  the  defendant  and  thus  relieve  the  gar- 
nishment.^ 

The  answer  of  a  garnishee  acknowledo-ing'  indebtedness  to 
a  firm  of  which  the  defendant  is  a  member,  but  denying  in- 
debtedness to  the  defendant,  would  not  bind  him.  There 
would  be  no  valid  garnishment;  the  debt  due  the  firm  would 
not  be  attached,  since  only  one  member  of  it  is  defendant  in 
the  attachment  suit.^  But,  after  such  answer,  the  attachino- 
creditor  may  amend  his  writ  by  making  the  other  partner  or 
partners  of  the  firm  defendants  also,  so  as  to  bring  into  court 
the  firm  itself;  and  then,  if  the  garnishee  or  trustee  still  holds 
funds  of  theirs,  or  owes  them  a  debt,  he  will  be  bound  by  his 
answer  already  given,  and  the  attachment  will  be  valid.^ 

If  some  of  the  members  of  a  firm  are  non-residents,  and 
garnishment  is  directed  against  all  but  only  the  residents  are 
served,  it  has  been  held  that  the  firm  is  bound  as  garnishee.' 

A  garnishee  owing  one  firm  cannot  be  charged  in  a  suit 
against  another  because  one  member  belongs  to  both  firms;" 
or  because  the  two  firms  are  mainly  composed  of  the  same 
members."^  One  who  does  business  under  a  firm  name,  though 
he  is  a  sole  trader,  may  be  garnished  in  that  name  or  his  own.^ 
A  surviving  partner,  doing  business  on  his  own  account  but 
in  the  name  of  his  late  firm,  cannot  avoid  the  garnishment  of 
his  debtors  though  they  nominally  owe  the  firm.^ 

N.  H.  184 ;  Hudson  v.  Hunt,  5  id.  538 ;  235 ;  West  v.  Piatt.  116  id.  308 ;  Terry 

Atkins  V.  Prescott,  10  id.   120;  Elli-  v.  Sisson,  125  id.  560;  Wright  v.  Her- 

cott  V.  Smith,  2  Cr.  C.  G  543 ;  Ball  v.  rick,  125  id.  154.     See  Frisk  v.  Reigle- 

Young,  52  Mich.  476.  man,  75  Wis.  499.     To  garnish  a  firm 

'  Macomber  v.  Wright,  35  Me.  156 ;  the  members  must  be  named.     Reid 

Travis  u  Tartt,  8  Ala.  574 ;  Speak  v.  v.  McLeod,  20  Ala.  576. 

Kinsey,  17  Tex.  301.  5  Parker  v.  Danforth,.16  Mass.  299 ; 

2  Jewett  V.  Bacon,  6  Mass.  60.  See  Warner  v.  Perkins,  8  Cush.  518;  At- 
Havvley  v.  Atlierton,  39  Ct.  309 ;  Sabin  kins  v.  Prescott,  10  N.  H.  120 ;  Peck 
V.  Cooper,  15  Gray,  532;  Robiuson  v.  v.  Barnum,  24  Vt.  75.  See  Kidder  v. 
Hall,  3  Met.  301.  Packard,  13  Mass.  80. 

3  Ripley  v.  Bank,  18  111.  App.  430;  «Ullman  v.  Eggert,  30  III.  App.  310. 
Havves  v.  Waltham,    18  Pick.   451 ;  ^  Brumwell  v.  Stebbins,  83  la.  425 ; 
Hoyt    V.   Robinson,   10    Gray,    371 ;  Mason  v.  Rice,  66  id.  174. 
Bulfinch  V.  Winchenbach,  0  Allen,  « Sheffield  v.  Barber,  14  R.  I.  263. 
161.  3  Brenner  v.  Hirsche,  69  Miss.  309. 

*  Sullivan    v.    Langley,    128  Mass. 


2TS  LIABILITY    TO    GARXISHMENT.  [§§  380-382. 

YI.  Pbomissokt  Note. 

g  380.  Maker  as  garnishee. —  The  obligation  of  the  maker 
of  a  negotiable  note  is  to  the  holder;  and  though  he,  as  gar- 
nishee, may  answer  that  the  defendant  was  the  holder  when 
the  garnishment  was  served,  or  that  he  is  still  the  holder  at 
the  time  of  answering,  it  does  not  follow  that  the  maker  may- 
be charged  as  garnishee,  for  the  defendant  may  pass  the  note 
at  any  time.^  The  maker  becomes  liable  Avhen  the  currency 
or  negotiability  of  the  note  has  been  destroyed  by  notice  or 
otherwise  pursuant  to  peculiar  statutory  provisions,  if  the  de- 
fendant is  shown  to  be  the  holder. 

If  the  maker  of  a  negotiable  promissory  note  is  summoned 
as  the  garnishee  of  the  payee  or  indorser,  the  attaching  plaint- 
iff is  not  entitled  to  judgment,  if  the  note  was  transferred 
either  before  or  after  the  service  of  the  attachment,  provided 
the  transferee  acquired  without  notice  of  the  attachment  and 
gave  value  for  the  note.^ 

§  381.  When  a  note  of  a  firm  was  delivered  to  the  payee, 
who  put  it  in  the  hands  of  a  member  of  the  firm  to  secure  the 
latter  in  case  of  loss  because  of  his  having  become  security  to 
the  payee  on  a  bond,  it  was  decided  that  the  firm  were  not 
chargeable  as  garnishees  in  a  suit  against  the  payee,  for  the 
reason  that  the  note  was  not  in  his  possession.^  The  general 
rule,  however,  is  that  the  maker  is  garnishable  if  summoned 
before  payment  if  the  control  continues  in  the  original  payee. 

Payment  to  the  credit  of  the  payee  of  a  note  under  a  gar- 
nishment judgment  is  no  defense  against  a  second  indorsee 
who  was  not  a  party  to  the  proceeding.* 

§  382.  The  maker  of  a  negotiable  note  owes  somebody,  but 
not  necessarily  the  payee  named  therein.  And  in  a  suit 
against  the  pa3^ee  he  cannot  ordinarly  be  subjected  to  gar- 

1  Sheets    v.    Culver,    14    La.    449 ;  payee  before  the  note  has  been  trans- 

Kimball  v.  Plant,  id.  511;  Stone  v.  ferrecl.     Amoskeag  Co.   v.   Gibbs,  8 

Dean,  5  N.  H.  503 ;  McMillan  v.  Rich-  Foster,  316. 

ards,   9   Cal.    365;   Gregory  v.   Hig-  2Cruett    v.    Jenkins,   53  Md.   217. 

gins,  10  id.  339 ;  Hinsdill  v.  Saflford,  See  Robertson  v.  Baker,  10  B.  J.  Lea, 

11  Vt   309 ;  Little  v.   Hale.  id.  482 ;  300 ;  Edney  v.  Willis,  23  Neb.  56. 

Hutchins  v.  Evans,  13  id.  541 ;   Hunt  3  Hunt  v.  Ely,  17  Fla.  775. 

V.   Ely.  17  Fla.  775.     The   maker  is  4  Holland  v.  Smith,  11  Mo.  App.  6. 
held  garnishable  in  a  suit  against  the 


§§  383,  384.]  PROMISSORY  note.  279 

nishment.  How  can  he  answer  that  he  owes  the  payee,  when 
the  note  may  have  passed  into  other  hands?  He  usually  does 
not  know.  His  obligation  is  to  pay  the  holder  at  maturity. 
Even  if  he  does  know  and  does  answer  that  the  note  is  still 
in  the  hands  of  the  original  payee,  while  it  is  not  yet  due,  no 
judgment  can  be  rendered  against  him  as  garnishee,  for  the 
reason  that  the  holder  may  pass  it  off  afterwards  and  the 
obligation  would  be  to  the  transferee ;  and  therefore,  should 
judgment  be  rendered  against  him  upon  his  answer,  he  might 
be  subjected  to  the  injustice  of  having  to  pay  twice.  He  may 
describe  the  note  and  acknowledge  his  liability  to  the  holder 
whoever  he  may  prove  to  be;  and  the  attachment  defendant 
must  be  proved  to  be  the  holder^before  the  garnishee  can  be 
charged,  unless  he  be  the  original  payee  and  is  presumed  to 
still  hold  under  certain  statutes.^ 

§  383.  Payment. —  Would  payment  of  the  note  under  such 
judgment  be  any  protection  to  the  garnishee  should  the  note 
be  afterwards  presented  by  the  rightful  owner?  Could  he 
plead  payment  in  defense?  As  he  certainly  could  not,  such 
judgment  would  place  him  in  a  worse  position  than  that  which 
he  previously  occupied,  which  is  against  justice  and  against 
the  first  principle  governing  the  process  of  garnishment. 

If  the  note  given  by  the  garnishee  to  the  defendant  has 
been  so  disposed  of  by  the  latter  that  it  is  certainly  not  upon 
the  market,  the  maker  may  be  charged  as  garnishee.  But  he 
cannot  be  so  charged  when  the  note  has  passed  from  the 
hands  of  the  defendant  and  is  somewhere  upon  the  market.- 

§  3S4.  When  the  legal  title  is  vested  in  the  indorsee  by  in- 
dorsement after  maturit}'^,  the  amount  due  on  the  note  (a  nego- 
tiable promissory  one)  cannot  be  garnished  in  the  hands  of 
the  maker  in  a  suit  against  the  original  holder.  It  is  not  to 
be  assumed  that  he  is  still  the  debtor  of  the  original  holder 
whether  he  has  notice  of  the  transfer  or  not.* 

1  See,  with  varying  rulings  under  v.  West,  38  Ga.  18 ;  Stetson  v.  Cleneay, 

different  state  statutes,  the  following:  14  Ind.  453;  Kapp  v.  Teel,  33  Tex. 

Shuler  v.  Bryson,  65  N.  C.  201 ;  Col-  811 ;  Bassetty.  Garth waite,  22  id.  230 ; 

cord  V.  Daggett,  18  Mo.  557 ;  Home  v.  Inglehart  r.  Moore,  21  id.  501 ;  May- 

Ould,  28  Gratt.  1;  Ormond  v.  Moye,  berry  v.  Morris,  62  Ala.  113;  Bills  v. 

11  Iredell,  564;   Myers  r.  Beeman,  9  Park  Bank,  89  N.  Y.  343. 

id.  116;  Day  v.  Zimmerman,  68  Pa.  2Warne  v.  Kendall,  78  111.  598. 

St.  72 ;  Hill  v.  Kroft,  29  id.  186 ;  Mims  » Knisely  v.  Evans,  34  Ohio  St.  158. 


280  LIABILITY    TO    GARNISHMENT.  [§  3S5. 

If  a  nefrotiable  note  has  been  transferred  after  the  attach- 
ment  has  been  served  on  the  defendant,  but  before  maturity, 
the  maker  cannot  be  held  as  garnishee  of  the  payee  or  in- 
dorser,  when  he  has  had  no  notice  of  the  attachment.^  The 
holder  takes  an  overdue  note  subject  to  equities  between  the 
original  parties,  including  the  right  acquired  by  an  attaching 
creditor  by  garnishing  the  maker.^ 

Where  notes  not  due  may  be  subjected  to  the  process,  and 
the  obligor  is  garnished  and  ordered  to  pay  to  the  attaching 
creditor  upon  maturity,  they  cannot  be  transferred  by  indors- 
ers  to  defeat  the  attachment.''  If  payable  not  in  money  but 
in  negotiable  promissory  notes,  indebtedness  would  not  make 
the  defendant's  debtor  liable  to  garnishment  at  the  suit  of 
the  attaching  creditor,  when  the  time  of  the  maturity  of  such 
notes  is  not  stated  by  the  garnishee  or  inquired  into  by  the 
plaintiff.* 

§  385.  Ifot  garnishal)le. —  One  who  gives  his  negotiable 
note  to  pay  his  own  debt  is  not  garnishable  in  a  suit  against 
the  payee,  though  he  gave  it  knowing  that  the  payee  meant 
to  put  it  beyond  the  reach  of  his  creditors.'^  The  payor  of  a 
negotiable  note,  drawn  and  payable  in  another  state  to  a  resi- 
dent there,  is  not  garnishable  in  New  Hampshire  in  a  suit 
against  the  payee.''  When  the  holder  of  a  promissory  note  is 
garnishable,  he  cannot  escape  his  liability  to  the  attaching 
creditor  by  suing  upon  it  and  filing  it  in  court.'^  If  he  holds 
not  as  the  owner  or  payee,  but  merely  as  depositary,  for  the 
purpose  of  defrauding  the  defendant's  creditors,  the  notes 
may  be  reached  by  garnishment.^  But  while  they  thus  may 
be  obtained,  no  lien  would  be  created  on  them,  or  on  books 
of  account  taken  in  charge.     To  create  a  lien,  the  defendant 

1  Cruett  V.  Jenkins,  53  Md.  317.  •*  Fuller  v.  O'Brien,  121  Mass.  422. 

2  Burton  u  Wynne,  55  Ga.  615.     It        5  Willis  y.  Heath,  75  Tex.  124. 
was  held  in  Nebraska  that  a  negoti-        ^Carbee  v.   Mason,   64  N.    H.  10; 
able  note  or  bill,  transferred  fraudu-  Chadbourn   v.   Gilman,   63   id.    853 ; 
lently  before  maturity  to  protect  the  Jones  v.  Rider,  60  id.  452. 

debt  from  the  creditors  of  the  payee,  "^  Trunkey  v.  Crosby,  33  Minn.  46. 

may   be   subjected    to   garnishment  See  De  Bebian  v.  Gola,  64  Md.  262,  as 

while    remaining    in   the  hands   of  to  bill  or  note  in  a  foreign  language, 

such  indorsee.     Clough  v.  Buck,   6  8  Kenosha  Stove  Co.  v.  Shedd,  82 

Neb.  343.  la.  540. 

3  Secor  V.  Witter,  39  Ohio  St.  218. 


§  380.]  PROMISSORY    NOTE.  281 

debtor  (whom  the  notes  or  books  may  disclose)  should  be 
made  the  garnishee.^  It  is  said  that  a  draft  about  to  be 
mailed  to  a  debtor  may  be  attached  in  the  drawer's  hands :  ^ 
rather,  the  sum  due  should  be  attached  in  his  hands  by  gar- 
nishment, so  that  a  lien  may  be  created. 

A  promissory  note  held  by  a  third  person,  but  owned  by 
the  defendant,  is  not  reached  by  the  garnishment  of  such 
pei'son,  as  he  is  not  a  debtor.^  It  is  the  obligor  of  the  note 
who  should  be  garnished. 

§  386.  Disclosure. —  As  the  transfer  of  negotiable  paper 
does  not  require  notice  to  the  payer,  he,  if  garnished,  should 
not  disclose  that  he  is  indebted  to  the  attachment  defendant, 
but  to  the  holder,  and  should  thereupon  be  discharged,  in  the 
absence  of  further  evidence.^  But  if  the  maker  of  a  negoti- 
able note  not  matured  is  garnished  by  the  payee's  creditor, 
and  afterwards  takes  up  the  note  at  maturity  and  gives  the 
payee  another  negotiable  note  for  the  same  debt,  he  is  liable 
under  the  garnishment.  It  is  true  that  such  note  may  have 
passed  into  unknown  hands  before  judgment,  and  may  not  be 
due ;  ^  but  the  drawer,  under  the  circumstances,  ought  not  to 
be  heard  to  plead  such  a  defense.  For  if  a  garnishee  sur- 
renders notes  of  the  debtor  after  summons,  he  is  liable  to  the 
creditor,  if  they  are  showfi  to  be  good  and  subject  to  garnish- 
ment.^ He  may  pay  an  indorsee  after  being  summoned  as 
garnishee  of  the  payee  if  his  fees  are  not  paid.^ 

The  maturity  of  a  note,  or  of  any  obligation,  cannot  be 
hastened  by  attachment ;  the  creditor  cannot  make  the  garni- 
shee pay  any  earlier  than  the  defendant  could,  had  no  suit 
been  brouo-ht  against  him.^ 


1  Boone  v.  Mcintosh,  63  Miss.  744.  St.   218.     See  Morrill   v.   Brown,   15 

2  Moursund  v.  Priess,  84  Tex.  554 ;  Pick.  173. 

Freeman  v.  Bank,  87  Ga.  45 ;  Craft  <  Brittain  v.   Anderson,    8  Baxter, 

V.  Summersell,  93  Ala.  430.  316 ;    Yarborough    v.   Thompson,   3 

3  Levisohn  v.  Waganer,  76  Ala.  413 ;  Sm.  &  M.  291 ;  Thompson  v.  Shelby, 
Rowland'  v.  Spencer,  14  N.  H.  530 ;  id.  296 ;  Cadwalader  v.  Hartley,  17 
Guild    V.    Holbrook,    11    Pick.    101 ;  Ind.  520. 

Wildes  V.  Nahant  Bank,  20  id.  353 ;  5  Leslie  v.  Merrill,  58  Ala.  323. 

Hopkins  v.  Ray,  1  Met.  79 ;  Knight  «  Stevens  r.  Dillman,  86  111.  233. 

V.  Bowley,  117  Mass.  551.     Compare  'Kauffman  v.  Jacobs,  49  la.  432. 

Indianapolis  Bank  v.  Armstrong,  101  8  gg  272-275. 
Ind.  244,  and  Secor  v.  Witter,  39  Ohio 


282  LIABILITY    TO    GAKKISHMENT.  [§§  387,  388. 

YII.    l^ON-KESIDENT    ThIRD    PoSSESSOKS. 

§  387.  "Where  one  not  a  resident  of  the  state  in  which  the 
attachment  suit  is  brought  may  be  summoned  as  a  garnishee 
if  within  the  state  so  as  to  be  subject  to  the  process,  he  must 
true  answer  make  as  to  the  property  of  the  defendant  which 
he  holds  within  the  state,  or  property  held  elsewhere  which 
he  has  obligated  himself  to  deliver  to  the  defendant  within 
the  state,  and  as  to  debt  due  to  defendant  payable  within 
the  state.  He  cannot  be  required  to  answer  touching  money 
or  goods  over  which  the  court  has  no  jurisdiction.  This  is 
true,  though  he  be  a  resident  of  the  state;  for  the  court  may 
have  jurisdiction  over  him  yet  not  over  property  situated  at  a 
place  to  which  the  jurisdiction  does  not  extend. 

In  Yermont  a  trustee  is  held  chargeable  though  both  plaint- 
iff and  defendant  reside  out  of  the  state  and  the  debt  of  the 
trustee  to  the  defendant  was  contracted  and  made  payable 
out  of  the  state.' 

§  388.  Both  the  defendant  and  the  garnishee  may  be  non- 
residents, yet  if  the  latter  be  found  within  the  jurisdiction 
and  served  with  process  of  garnishment,  the  proceeding  may 
hold  good  if  he  has  assets  of  the  defendant  within  the  state.^ 

In  Michigan  non-resident  debtors  are  not  liable  to  have  gar- 
nishment proceedings  against  them  when  the  suit  is  against 
them  and  other  defendants  who  are  resident.^  They  are  lia- 
ble though  the  plaintiff  be  a  non-resident.* 

An  agent  of  a  foreign  insurance  company,  authorized  to  re- 
ceive process,  is  not  garnishable  in  Colorado  by  a  resident 

1  Nichols  V.  Hooper,  61  Vt.  295.    So  Green  v.  Farmers'  &  Citizens'  Bank, 

in    Minnesota.      Harvey     v.     Great  25  Ct.  452 ;  Miller  n  Hooe,  2  Or.  C.  C. 

Northern  R.  Co.,  50  Minn.  405.  622;  Bates  v.  N.  O.  etc.  R  Co.,  4  Ab- 

-  Sawyer  v.   Thompson,   4  Foster,  bott's  Prac.  R.  72 ;  Willet  v.  Eq.  Ins. 

510  {see  Cronin   v.   Foster,   13  R.  I.  Co.,  10  id.  193.     See  Waldron  v.  Wil- 

196) ;  Young  v.  Ross,  11  Foster,  201 ;  cox.  13  R.  I.  518 ;  Winslow  v.  Fletcher, 

Tingley  v.   Batemaii,  10   Mass.  343 ;  53  Ct.  390 ;  55  Am.  Rep.  122. 

Ray  V.  Underwood,  3  Pick.  302;  Hart  3  ^Vilson  v.   Reilly,   82  Mich.  169; 

V.  Anthony,  15  id.  445 ;  Nye  v.  Lis-  How.   Stat.,   §  8087 ;    Ford    v.    Dry 

comb,  21  id.  263;  Lovejoy  v.  Albree,  Dock  Co.,  50   Mich.  358;  Farwell  v. 

33  Me.  414 ;  Baxter  v.  Vincent,  6  Vt.  Circuit  Judge,  62  id.  316. 

614;  Jones  v.  Winchester,  6  N.  H.  4  Newland  v.  Reilly,  85  Mich.  151; 

497 ;  Lawrence  v.  Smith,  45  id.  533 ;  Cof rode  v.  Circuit  Judge,  79  id.  332. 


§g  3S9-391.]  NON-EESIDENT    THIRD    POSSESSORS.  283 

plaintiff  for  a  debt  of  the  company  to  a  defendant  who  is  a 
non-resident.^ 

§  389.  The  non-resident  garnishee,  when  found  within  the 
state  and  served  with  process,  becomes  personally  amenable 
to  the  jurisdiction  of  the  court  issuing  the  process,  and  must 
answer.  If  he  has  nothing  of  defendant's  within  the  state, 
and  owes  him  nothing  payable  within  the  state,  he  must  so 
swear,  or  he  may  be  held  contumacious  and  in  fault  and  be 
condemned  to  pay  such  judgment  a.s  may  be  rendered  if  the 
interrogatories  amply  cover  the  whole  claim.  Xone  but  him- 
self is  competent  to  present  the  state  of  facts  by  which  he 
should  be  exonerated. 

§  390.  A  firm  located  and  doing  business  in  a  state,  and 
having  goods  or  credits  of  the  defendant  there,  may  be  sub- 
jected to  garnishment  there  through  a  resident  member  or 
members,  although  another  member,  or  even  a  majority  of 
those  of  the  firm,  may  reside  out  of  the  state  and  not  be  found 
temporarily  in  the  state  and  not  summoned  at  all.  A  corpo- 
ration located  beyond  the  state  bounds,  having  assets  of  the 
defendant  within  the  state,  and  an  agent  within  it  on  'whom 
process  may  he  legally  served  as  on  the  corporation,  may  be 
made  a  garnishee. 

Whether  a  natural  or  an  artificial  person,  whether  a  mem- 
ber of  a  firm  or  not,  whether  residing  without  the  jurisdiction 
or  not,  whether  having  property  or  funds  in  the  hands  of  the 
defendant  or  not,  let  the  garnishee  answer  plainly,  stating  all 
the  circumstances. 

§391.  Non-resident  temporarily  in  tlie  state. —  One  who  is 
only  temporarily  in  a  state  in  which  he  does  not  reside  can- 
not be  subjected  to  garnishment,  as  a  general  rule.  This  rule, 
wherever  it  obtains,  will  warrant  his  discharge ;  and  whenever 
he  is  exempt  by  law  he  cannot  waive  the  exemption,  because 
it  is  not  with  him  a  personal  matter,  and  he  has  no  right  to 
prejudice  the  defendant.^  It  would  be  different  with  one  who 
has  a  regular  place  of  business  in  a  state,  though  his  principal 
residence  were  elsewhere.  A  corporation  frequently  does 
business  at  the  same  time  in  several  different  states,  and  it  is 

1  Everett  v.  Walker  (Colo.  App.),  36        2  Rindge  v.  Green,  52  Vt  204. 
P.  616.     Compare  Mo.  Pac.  R.  Co.  v. 
Flannigan,  47  111.  App.  323. 


281:  LIABILITY    TO    GARNISHMENT.  [§  392. 

liable  to  garnishment  in  any  one  of  them  where  it  has  an  officer 
upoii  whom  the  process  may  be  legally  served,  if  it  has  prop- 
erty of  the  defendant  there.^  If  a  corporation  is  chartered  in 
different  states  it  has  corporate  existence  in  each,  as  a  matter 
of  course,  and.  may  be  treated  in  each  as  a  resident.-  But  if 
not  thus  chartered  so  as  to  be,  in  contemplation  of  law,  a  resi- 
dent of  the  state,  it  comes  under  the  rule  governing  natural 
persons.^  It  has  been  held  that  non-resident  common  carriers 
are  not  liable  to  foreign  attachment  for  the  loss  of  a  trunk 
within  the  state.* 

§  392.  Non-residents  are  not  usually  liable  to  be  garnished,* 
nor  are  foreign  corporations ;  but  should  such  a  corporation 
operate  in  a  state  other  than  its  own  (by  permission  or  com- 
ity),^ it  may  become  liable  there  to  garnishment  process.'  One 
who  holds  property  under  trust  created  by  judicial  decree  of 
a  court  in  another  state  which  has  jurisdiction  of  the  matter 
is  accountable  to  the  courts  of  that  state  only  for  the  execu-. 
tion  of  the  trust,  and  the  property  so  held  cannot  be  reached 
by  a  beneficiary  or  his  creditors  in  a  different  state  where  the 
trustee  resides.^ 

1  Commerce  Bank  v.  Huntington,  *  Porter  v.  Hildebrand,  14  Pa.  St. 
129  Mass.  444.  129. 

2  Smith  V.  B.  C.  &  M.  Ry.  Co.,  33  &  Squair  v.  Shea,  26  Ohio  St  645. 
N.  H.   337;  Bait.  &  Ohio  R.  Co.  v.  6  Liverpool   Ins.   Co.  v.  Massachu- 
Gallahue,  12  Gratt.  655.  setts,  10  Wall.  566 ;  State  v.  Boston. 

3  Larkin  v.  Wilson,  106  Mass.  120;  etc.  R.  R.  Co.,  25  Vt.  433. 

Gold  V.  Railroad  Co.,  1  Gray.  424;  7  Railroad  v.  Peoples,  31  Ohio  St. 

Danforth  v.  Penny,  3  Met.  564 ;  Brad-  537. 

ford  V.  Mills,  5  R.  I.  393.     Compare  8  Jenkins  v.  Lester,  181  Mass.  355; 

Selma,  etc.  R.  Co.  v.  Tyson,  48  Ga.  Curtis  v.  Smith,  60  Barb.  9. 

351. 


CHAPTER  XI. 

LEGAL  CUSTODY  RELATIVE  TO  GARNISHMENT. 

L  Officers  of  Court,  etc §§  393-402 

II.  Executors,  Adjunistrators,  etc 403-411 

III.  Assignment,  Relative  to  Garnishment 412-423 

IV.  Illegal  and  Fraudulent  Assignment 423-427 


L  Officers  of  Court,  etc. 

§  393.  Sheriff,  ivlien  not  garnisliable. —  Money  and  property 
in  an  officer's  hands  under  such  circumstances  as  to  be  in  the 
custody  of  the  law  are  not  subject  to  garnishment  or  attach- 
ment.^ 


1  Clymer  v.  Willis,  3  Cal.  363 ;  Curl- 
ing V.  Hyde,  10  Miss.  374 ;  Alston  v. 
Clay,  2  Haywood,  171;  Millison  v. 
Fisk,  43  111.  112, 118;  Roberts  v.  Dunn, 
71  id.  46;  Lightner  v.  SteinageJ,  33 
id.  513 ;  Pierce  v.  Carleton,  12  id.  364 
(but  a  sheriff  may  be  garnished  for  a 
surplus  in  his  hands  received  on  exe- 
cution. Id.) ;  Ross  V.  Clarke,  1  Dall. 
(Pa.)  354 ;  Hunt  v.  Stevens,  3  Iredell, 
365  :  Reddick  v.  Smith,  3  Scam.  451 ; 
Lathrop  v.  Blake,  3  Foster,  46 ;  Staun- 
ton V.  Holmes,  4  Day  (Ct.),  87,  96; 
Odiorne  v.  Colley,  2  N.  H.  66 ;  Winch- 
ell  V.  Allen,  1  Ct  385 ;  Beers  v.  Place, 
36  id.  578 ;  The  Oliver  Jordan,  2  Curt 
414;  Watson  v.  Todd,  5  Mass.  271; 
Chealey  v.  Brewer,  7  id.  259 ;  Brooks 
V.  Cook,  8  id.  246 ;  Vinton  v.  Brad- 
ford, 13  id.  114;  Thompson  v.  Marsh, 
14  id.  269 ;  Burlingame  v.  Bell,  16  id. 
318 ;  Robinson  v.  Ensign,  6  Gray,  300 ; 
Barnes  v.  Treat  7  Mass.  271 ;  Thomp- 
son V.  Brown,  17  Pick.  462 ;  State 
V.  Boothe,  68  Mo.  546;  Marvin  v. 
Hawley,  5  id.  378 ;  43  Am.  Dec.  547 ; 
Fearle,  Ex  parte,  13  Mo.  467;  53  Am. 


Dec.  155 ;  State  v.  Netherton,  26  Mo. 
App.  414 ;  Wendell  v.  Pierce,  13  N. 
H.  502 ;  Dawson  v.  Holcomb,  1  Ohio, 
275;  13  Am.  Dec.  618;  Dean  v.  Mc- 
Gavock,  7  Humph.  132 ;  Ladd  v.  Gale, 
57  N.  H.  210 ;  Blair  v.  Canty,  2  Speers 
(S.  C),  34;  42  Am.  Dec.  360;  Turner 
V.  Fendall,  1  Cranch,  117;  Jones  v. 
Jones,  1  Bland  (Md.),  443;  18  Am. 
Dec.  327 ;  Wilson  v.  Ridgely,  46  Md. 
235  ;  Burroughs  v.  Wright  16  Vt  619  ; 
Prentiss  v.  Bliss,  4  id.  513;  24  Am. 
Dec.  631 ;  Conant  v.  Bicknell,  1  D. 
Chipman  (Vt.),  50 ;  First  v.  Miller,  4 
Bibb,  311 ;  Moore  v.  Whittenburg,  13 
La.  Ann.  22;  Dubois  v.  Dubois,  6 
Cowen,  494 ;  Taylor  v.  Carryl,  24  Pa. 
St  259 ;  Crane  v.  Freese,  1  Har.  (N.  J.) 
305 ;  Conover  v.  Ruckman,  32  N.  J. 
Eq.  686 ;  Davis  v.  Mahoney,  9  Vroora, 
107 ;  3Ioore  V.  Graves,  3  N.  H.  408 ; 
Farmers'  Bank  v.  Beaston,  7  Gill  & 
J.  (Md.)  421  :  The  Robert  Fulton,  1 
Paine,  620 ;  Benson  v.  Berry,  55  Barb. 
620  ;  Freeman  v.  Howe,  24  How.  450  ; 
Harbison  v.  McCartney,  1  Grant  (Pa.), 
172;  Lewis   v.    Buck,   7   Minn.    104; 


2S6  LEGAL    CUSTODY    RELATIVE    TO    GARNISHMENT.  [§  39Jr. 

JN'o  one  would  contend  that  property  in  the  possession  of  a 
sheriff,  seized  in  execution,  to  satisfy  a  judgment,  could  be 
made  the  subject  of  garnishment  in  an  attachment  suit  brought 
by  a  creditor  of  the  judgment  creditor  who  had  sued  out  the 
execution.  Such  property,  thus  seized  by  the  sheriff,  does  not 
belong  to  the  judgment  creditor  and  cannot  be  attached  by 
any  other  as  his.  After  the  sale  of  such  property  under  the 
writ,  do  the  proceeds  belong  to  the  judgment  creditor  in  such 
a  sense  as  to  be  attachable  as  his  by  another  suitor  in  a  new 
suit?  They  do  not  yet  belong  to  him.  The  sheriff  has  his 
time  for  returning  the  writ.  Good  reasons  exist  for  the  legal 
delay,  such  as  the  possibility  of  mistakes  to  be  corrected,  the 
awarding  of  the  costs  by  the  court,  etc.  If,  when  the  time 
has  arrived  for  paying  over  the  proceeds  to  the  plaintiff  in 
satisfaction  of  the  judgment,  the  sheriff  should  fail  to  do  so, 
the  law  gives  the  plaintiff  his  proper  remedy.  But  before 
the  money  has  been  paid  to  the  plaintiff  it  is  not  his.  It  is  in 
process  of  payment,  going  from  the  defendant  to  the  plaintiff, 
not  attachable  now  as  the  defendant's  money,  but  would  cer- 
tainly be  returnable  to  the  defendant  should  the  judgment  be 
annulled  for  any  reason. 

§  394.  While  in  the  custody  of  the  sheriff  the  money  cannot 
be  deemed  a  credit  belonging  to  the  plaintiff.  The  relation  of 
debtor  and  creditor  does  not  exist  between  them.  Were  the 
money  made  by  execution  liable  to  garnishment  sued  out  by  a 
creditor  of  the  judgment  plaintiff  of  the  original  suit,  either  as 
the  money  or  credit  of  such  plaintiff  in  the  hands  of  the  sheriff 
as  a  third  person,  where  would  litigation  end?  The  person 
attaching  the  money  could  not  enter  the  original  judgment 
satisfied,  because  he  would  not  be  a  party  to  the  record  of 
the  case.  Besides,  the  sheriff  is  not  the  agent  of  the  plaintiff 
who  sued  out  the  writ  of  execution  by  which  the  money  comes 

"Walker  v.  Foxcrof  t,  2  Me.  270 ;  Strout  Tex.  262 ;  Lyon  v.  Balentine,  63  Mich, 

u  Bradbury,  5  id.  313 ;  Allen  v.  Rus-  97 ;   Prout  v.  Gregory,  24  Q.  B.  Div, 

sell,  78  Ky.  105 ;  Oldham  v.  Scrivener,  281.     But  a  constable  may   be  gar- 

3  B.  Mon.  579 ;  Stillman  v.  Isham,  11  nished  for  funds  collected  by  execu- 

Ct.  124 ;  Thayer  v.  Tyler,  5  Allen,  94 ;  tion  under  Wisconsin  Statutes,  sec- 

Pacc  V.  Smith,  57  Tex.  555 ;  Lackett  tion  2769.     Storm  v.  Adams,  56  Wis. 

V.  Rumbaugh,  45  Fed.  27 ;  Mattingly  137. 
V.  Boyd,  20  How.  128 ;  Habich  v.  Fol- 
ger,   20   Wall.  1 ;  Curtis  v.  Ford,  78 


§§  395,  306.]  oFFicEKS  of  court,  etc.  287 

into  the  officer's  hands.  However,  when  litigation  has  ended, 
the  money  ready  to  be  paid  to  the  plaintiff  may  be  attached 
in  the  sheriff's  hands,  under  certain  circumstances,  as  here- 
after shown. 

§  395.  Mone}^  made  by  a  sheriff  on  execution  is  in  his  hands 
as  a  legal  and  official  custodian,  not  as  the  agent  or  trustee  of 
the  judgment  creditor.  The  money  is  not  deposited  in  the 
sheriff's  hands  by  the  plaintiff;  the  particular  coins  or  notes 
collected  by  the  sheriff  constitute  no  part  of  the  property  of 
the  plaintiff :  \vhy  then  should  a  creditor  of  the  latter  be  al- 
lowed to  reach  such  money  by  garnishment  while  it  is  in  the 
officer's  hands?  The  sheriff  has  collected  it  under ^.y«.  issued 
at  the  instigation  of  the  plaintiff,  it  is  true;  but  after  the  ex- 
ecution of  the  writ  he  does  not  owe  the  plaintiff,  and  is  not 
obliged  to  pay  the  collected  money  directly  to  him  (though 
he  may  legally  do  so),  for  payment  into  the  registry  of  the 
court  would  satisfy  the  law,  so  far  as  his  official  duty  is  con- 
cerned. He  is  not  anywhere  obliged  to  pay  to  the  plaintiff 
before  demand  and  before  the  return  day  of  the  writ,  though 
he  has  received  the  money  earlier.^ 

§  396.  SJieriff,  ivlien  garnhluible. —  When  litigation  has 
ended,  distribution  ordered  and  the  sheriff  holds  money  col- 
lected by  execution,  with  no  duty  left  him  but  to  pay  it  over 
to  the  judgment  plaintiff  or  the  distributee,  he  may  be  gar- 
nished so  as  to  attach  the  money  in  his  hands,  in  a  suit  against 
the  person  to  wiiom  he  is  ready  to  pay  it.^ 

1  Clark  V.  Shaw,  28  Fed.  356;  v.  Dubois,  6  Cow.  494 ;  Blair  u  Canty, 
Wilder  v.  Bailey  &  Trustee,  3  Mass.  2  Speers,  34 ;  Burrell  v.  Letson,  id. 
289,  293 ;  Farr  v.  Newman,  4  Term  R.  378 :  Drane  v.  McGavock,  7  Humph. 
651;  Hill  V.  La  Crosse  &  M.  R.  Ry.  132;  Pawley  v.  Gaines,  1  Tenn.  208; 
Co.,  14  Wis.  291 ;  Marvin  v.  Hawley,  Staples  v.  Staples,  4  Me.  532. 
9  Mo.  382;  Overton  r.  Hill,  1  Murph.  2  Evans  v.  Virgin.  72  Wis.  423; 
47;  Clymer  v.  Willis,  3  Cal.  363;  Tompkins  t\  Hemphill  (la.), 34  N.  W. 
Dawson  v.  Holcombe,  1  Ohio,  135;  844;  Oppenheimer  v.  Marr,  31  Neb. 
I'irst  V.  Miller,  4  Bibb,  311 ;  Chealy  zj.  811;  Civ.  Code  Neb.,  §§  224,  939  {see 
Brewer,  7  Mass.  259 ;  Barnes  v.  Treat,  Weaver  v.  Cressman,  21  Neb.  679) ; 
id.  271 ;  Brooks  v.  Cook,  8  id.  246 ;  Wahle  v.  Connor,  83  N.  Y.  231 ;  Hurl- 
Pollard  V.  Ross,  5'id.  319 ;  Penniman  hurt  v.  Hicks,  17  Vt.  193 ;  44  Am.  Dec. 
V.  Ruggles,  6  id.  166;  Sharp  v.  Clark,  329;  Tucker  v.  Atkinson.  1  Humph. 
2  id.  91 ;  Reddick  v.  Smith,  4  111.  451 ;  300 ;  34  Am.  Dec.  650 ;  Davidson  v. 
Turner  v.  Fendall,  1  Cranch,  117;  Clayland,  1  Har.  &  Johns.  546; 
Prentiss  u  Bliss,  4  Vt.  513;  Dufx)is  Perego  r.  Bouesteel,  5  Biss.  66 ;  Den- 


288  LEGAL   CUSTODY    RELATIVE    TO   GARNISHMENT.  [§  397. 

§  397.  A  surplus,  remaining  in  the  sheriff's  hands  after  an 
execution  has  resulted  in  the  payment  of  the  plaintiff  and  the 
satisfaction  of  the  judgment,  clearly  belongs  to  the  defendant. 
The  sheriff  has  no  right  to  withhold  it  from  that  owner.  It 
cannot  be  retained  on  the  pretense  that  it  is  in  custodia  legis} 
The  sheriff  does  not  hold  it  in  his  official  capacity.  There  is 
no  reason  why  the  person  holding  such  money  belonging  to 
the  defendant  may  not  be  garnished  in  a  suit  against  the  de- 
fendant. Such  person  could  not  shield  himself  under  his 
garb  of  shrievalty.  He  is  none  the  less  a  proper  garnishee 
by  being  a  sheriff.'^  If,  at  any  stage,  the  money  in  the  sher- 
iff's hands  belongs  to  and  is  recoverable  by  the  defendant,  it 
ought  to  be  reachable  by  garnishment.^  If  more  is  collected 
than  necessary  to  satisfy  the  writ  and  costs,  the  excess  may 
be  attached  by  garnishing  the  sheriff  in  a  suit  by  another 
creditor  against  the  execution  defendant."*  And  money  de- 
posited with  the  sheriff  by  a  defendant  to  enable  himself  to 
retain  possession  of  replevied  property  has  been  held  subject 
to  garnishment  in  the  officer's  hands,  in  a  suit  against  the 
depositor,  when  the  deposit  of  money  for  such  a  purpose  was 
not  authorized  by  law\^ 

The  proceeds  of  attached  property  sold  as  perishable  in  a 
former  suit  were  reached  by  garnishing  the  sheriff  who  held 
them  as  due  and  owing  to  the  defendant.  The  former  attach- 
ment had  been  dismissed;  the  second  suit,  in  which  the  pro- 
ceeds were  thus  attached,  was  between  the  same  parties.^ 

nistown  v.  New  York,  etc.,  6  La.  Ann.  burt  v.  Hicks,   17  Vt.  193 ;  Conant 

782 ;  Scolefield  v.  Bradlee,  8  Martin  v.  Bicknell,  1  D.  Chipman,  50 ;  Love- 

(La.),  495.   CojJipareClarku.  Shaw,  28  joy  v.  Lee,  35  Vt.  430 ;  Woodbridge 

Fed.  356  (money  collected  on  execu-  v.    Morse,    5  N.    H.    519 ;   Crane   v. 

tion  by  United  States  marshal).  Freese,  1  Harrison,  305 ;  Burleson  v. 

1  Oppeuheimer    v.   Marr,   31    Neb.  Milan,  56  Miss.  399. 

811 ;  Leroux  v.  Baldus  (Tex.),  13  S.  W.  *  First  N.  Bank  v.  Hanchett,    126 

1019.  111.  505 ;  Pierce  v.  Carlton,  12  id.  358 ; 

^Pierce    v.    Carlton,    12    111.    364;  Wheeler  v.    Smith,    11    Barb.    345; 

Wheeler    v.    Smith,    11   Barb.    345 ;  Holmes  v.  Newcaster,  12  Johns.  395 ; 

Hearn    v.   Crutcher,    4    Yerg.    461 ;  Spencer  v.   Blaisdell,   4  N.  H.    198 ; 

Jaquett    v.    Palmer,    2    Harrington  Tucker  v.  Atkinsdn,   1  Humph.  300. 

(Del),  144 ;  King  u.  Moore,  6  Ala.  160 ;  5  Johnson  v.  Mason,   16  Mo.  App. 

Hill  V.  Beach,  1  Beas.  31 ;  Adams  v.  271. 

Lane,  38  Vt.  640.  6  Anthanissen     v.     Towing     and 

3  Hoffman  v.  Wetherel,  42  la.  89 ;  Wrecking  Co.  (Ga),  17  S.  E.  951. 
Reifsnyder  v.  Lee,  44  id.  101 ;  Hurl- 


§  398.] 


OFFICERS    OF    COURT,  ETC. 


289 


The  rule  is  the  same  Avhether  the  mouey  is  held  by  a  sheriff 
or  his  de])uty  under  such  circumstances,^ 

It  will  be  observed  that  it  is  not  only  the  money  and  prop- 
erty of  public  corporations,  such  as  states,  counties,  town- 
ships, school  districts  and  cities,  that  is  exempt  from  attach- 
ment and  garnishment  in  the  hands  of  their  officers,  but  that 
money  and  property  not  belonging  to  such  corporations  are 
exempt  when  held  by  officers  in  such  sense  as  to  be  deemed 
within  the  custody  of  the  law. 

§  398.  Clerks  and  other  court  officers. —  "What  has  been  said 
of  sheriffs  will  apply  as  well  to  clerks  of  courts,  prothono- 
taries,  recorders,  registrars,  justices  of  the  peace,  constables, 
receivers,  disbursing  officers,  assignees  in  bankruptcy,  trust- 
ees of  insolvency,  city  and  county  treasures,  comptrollers, 
auditors,  commissioners,  etc.^ 


i  Watson  V.  Todd  et  al,  5  Mass.  271, 
274.  An  auctioneer,  selling  for  the 
oheriflf,  is  his  agent.  Griffin  v.  Helm- 
bold,  72  N.  Y.  437. 

^Simonds  v.  Harris,  92  Ind.  505; 
Sweetzer  v.  Claflin,  74  Tex.  667; 
Weaver  v.  Cressman,  21  Neb.  675 ; 
(Smith  V.  Finlen,  23  111.  App.  156  (see 
Trctter  v.  Lehigh,  etc.  Co.,  41  N.  J. 
Eq.  229) ;  Walker  v.  Taylor,  56  Ark.  1 ; 
Voorhees  v.  Sessions,  34  Mich.  99 ; 
Cockey  v.  Leister,  12  Md.  124 ;  Glenn 
V.  Gill,  2  id.  1 ;  Williams  v.  Jones,  38 
id.  555 ;  McPherson  v.  Snowden,  19 
id.  197 ;  Groome  v.  Lewis,  23  id.  137 : 
Haydon  v.  Bank  of  Wisconsin,  1 
Pinney,  61 ;  Field  v.  Jones,  11  Ga. 
413 ;  Daley  v.  Cunningham,  3  La. 
Ann.  55;  Hanna  v.  Bry,  5  id.  651; 
Nelson  v.  Connor,  6  Rob,  (La.)  339 ; 
Gaither  v.  Bellew,  4  Jones,  488 ;  Al- 
ston V.  Clay,  2  Hayw.  171 ;  Murrellr. 
Johnson,  8  Hill  (S.  C.)  12 ;  Merrill  v. 
Campbell,  49  Wis.  535;  Hunt  v. 
Stevens,  3  Iredell,  365 ;  Buchanan  v. 
Alexander,  4  How.  20 ;  Ross  v.  Clarke, 
1  Dall.  354 ;  Averill  v.  Tucker,  2  Cr. 
C.  C,  544 ;  Cole  v.  Wooster,  2  Ct  203 ; 
New  Haven  Saw  Mill  Co,  v.  Fowler, 
28  id.  103;  Corbyn  v.  BoIIman,  4 
19 


Watts  &  Sorg.  342;  Burnham  v. 
Fond  du  Lac,  15  Wis.  193 ;  Van  Ris- 
wick  V.  Lamon,  2  MacArthur,  172; 
Buckley  v.  Eckert,  3  Pa.  St.  368; 
Lodor  V.  Baker,  39  N.  J,  L."49;  Dew- 
ing V.  Wentvvorth,  11  Cush.  499; 
Bivens  v.  Harper,  59  111.  21  {see 
Jones  V.  Gorham,  2  Mass.  375);  Oliver 
V.  Smith,  5  id.  183;  Triebel  v.  Col- 
burn,  64  111.  376 ;  Casey  v.  Davis,  100 
Mass.  124 ;  Barnard  v.  Graves,  16 
Pick.  41 ;  Millison  v.  Fisk,  43  111.  112; 
Neuler  v.  OTallon,  18  Mo,  277 ;  Wal- 
lace V,  Lawyer,  54  Ind,  501 ;  Me- 
chanics' &  Traders'  Bank  v.  Hodge, 

3  Rob.  (La.)  373 ;  McKenzie  v.  Noble, 
13  Rich.  147;  Bentley  v.  Shrieve,  4 
Md.  Ch,  412 ;  Hagedon  v.  Bank  of 
Wisconsin,  1  Pinney,  61 ;  Huntley  v. 
Stone,  4  Wis,  91 ;  Taylor  v.  Gillian, 
23  Tex,  508 ;  Dunlop  v.  Paterson  Fire 
Ins,  Co,,  74  N,  Y.  145;  Bowden  v. 
Schatzell,  Bailey  Eq.  360;  Colby  v. 
Coates,  6  Cush.  558  {see  Decoster 
V.  Livermore,  4  Mass,  101) ;  Clark»r. 
Boggs,  6  Ala.  809;  Laugdon  v. 
Lockett,  id.  727 ;  Webb  v.  McCauley, 

4  Bush,  8;  Briggs  v.  Block,  18  Mo. 
281 ;  Bivens  v.  School  Directors,  59 
111.  21. 


290      LEGAL    CUSTODY    EELATIVE   TO    GARNISHMENT.       [§§  399,  400.  , 

What  was  said  of  the  liability  of  sheriffs  to  garnishment  for 
surplus  funds  in  their  hands  is  equally  applicable  to  the  offi- 
cers and  official  agents  subsequently  named.  It  will  be  under- 
stood that  when  any  of  them  holds  funds  which  are  not  within 
the  custody  of  the  law,  he  may  be  garnished.^ 

§  399.  Money  in  the  hands  of  a  clerk  of  court,  which  is  pay- 
able directly,  may  be  attached  by  garnishing  him  in  a  suit 
against  the  payee ;  it  is  held  not  in  custodia  legis  when  thus 
ready  for  deliv^ery.-  So  when  held  in  like  manner  by  a  regis- 
ter in  chancery.^  The  clerk  may  be  garnished  for  mone}^  held 
in  his  private  capacity,  placed  in  his  hands  by  a  defendant  to 
be  tendered  to  the  plaintiff.^ 

The  funds  of  a  bankrupt's  estate  may  be  attached  in  the 
hands  of  the  master  in  chancery  after  order  of  distribution,  by 
garnishing  him  in  a  suit  against  anj^  creditor,  to  the  amount 
of  such  creditor's  share."^ 

/^%  400.  Receivers. —  A  receiver  appointed  b}^  the  court  holds 
funds  and  property  in  legal  custody,  and  is  therefore  not 
garnishable  while  administering,^  but  when  he  is  ready  to  pay 
over  under  order  of  court  his  position  is  similar  to  that  of  a 
sheriff  or  clerk  when  like  duty  only  remains.^  So  a  commis- 
sioner to  sell  land  under  order  of  court  cannot  be  garnished 
for  the  purchase-money  before  the  order  of  distribution.^   • 

1  Hoffman  u  Wetherell,  42  la.  89 ;  v.  Cressman,  21  Neb.  675.     Compare 
Wendell    v.   Pierce,   13   N.   H.   502 ;  Lord  v.  Collins,  79  Me.  227. 
Gaither  v.  Bellew,  4  Jones,  488 ;  Clark        ■*  Marine     N.    Bank    v.   Whitman 
V.   Boggs,   6  Ala.    809 ;    Langdon   v.  Paper  Mills,  49  Minn.  133. 
Lockett,  id.  727;   Weaver  v.  Davis,        SDunsmoor  v.  Furstenfeldt,  88  Cal. 
47   111.  235 ;  Cole  v.  Wooster,  2   Ct.  522 ;  Estate  of  Nerac,  35  id.  392 ;  95 
203;  Williams  v.  Jones,  38  Md.  555;  Am.  Dec.  Ill;  Gaither  v.  Bellew,  4 
Eobertson  v.  Beall,  10  id.   125 ;  Van  Jones,  488 ;  69  Am.  Dec.  764. 
Eiswick  ?7.  Lamon,  2MacArthm-,  172;        «  McGovvan  v.   Myers,   66   la.    99; 
Dunlop  V.  Patersou  Fire  Ins.  Co.,  74  Glenn  v.  Gill,  2  Md.  1 ;  Field  v.  Jones. 
N.  Y.  145;  Conover  v.  Ruckman,  33  11   Ga.   413;  Temper  v.   Brooks,   40 
N.  J.  Eq.  303.  Mich.  333 ;  Taylor  v.  Gillean,  23  Tex. 

2  Leroux  v.  Baldus  (Tex.),  13  S.  W.  508;  Jackson  v.  Lahee,  114  III.  287. 
1019 ;    Wilbur  v.   Flannery,   60    Vt.         '  AVillard  v.  Decatur,  59  N.  H.  137. 
581 ;  Nolte  v.  Von  Gassy,  15  111.  App.  See  Fenton  v.  Fisher,  106  Pa.  St.  418, 
230.  as   to  the  garnishment  of  a  trustee 

3  Langdon  v.  Lockett,  6  Ala.  727 ;  appointed  by  a  probate  court  to  make 
41  Am.  Dec.  78.  lu  this  case  the  reg-  petition  to  attach  in  his  bauds  the 
ister  held  a  balance  from  a  sale  after  interest  of  any  party  to  the  proceed- 
the  litigation  was  ended.  See  Weaver  ings. 

8  Fearing  v.  Shafner,  62  Miss.  791. 


§§  4(11— iU3.]  EXECUTOKS,  ADMIKISTKATOKS,  ETC.  291 

§  401.  Trustees. — A  trustee  holding  under  a  deed  of  trust 
for  the  benefit  of  preferred  creditors  was  summoned  as  gar- 
nishee by  other  creditors  who  alleged  that  the  deed  was  void, 
and  he  was  charged.  Pending  an  appeal,  a  creditor  of  one 
of  the  preferred  creditors  summoned  the  trustee  by  process  of 
garnishment  to  attach  that  preferred  creditor's  distributive 
share.  This  garnishment  was  not  maintained,  as  the  property 
was  in  ctcstodia  legis} 

§  402.  Attorneys. —  It  will  be  readily  perceived  that  the 
reason  for  holding  a  public  officer  exempt  from  liability  to 
garnishment  is  totally  inapplicable  to  an  attorney  at  law 
holding  funds  belonging  to  his  client;  and,  indeed,  inappli- 
cable to  any  mere  agent  holding  for  a  principal  who  may  be 
readily  sued  by  attachment.  Where  the  principal,  in  such 
case,  ma}''  have  an  attachment  suit  brought  against  him,  his 
attorney,  whether  at  law  or  in  fact,  may  be  garnished.^ 

An  Illinois  bank  having  obtained  judgment  against  a  citizen 
of  New  York  was  sued  there  by  an  alleged  creditor,  who 
sought  to  subject  the  judgment-right  to  garnishment  by  serv- 
ing the  attorney  of  the  judgment  defendant.  The  latter  had 
died  before  this  service ;  and  the  court  held  that  the  service 
should  have  been  on  the  legal  representatives  of  the  decedent's 
estate  and  not  on  the  attorney  of  the  defendant  in  the  suit 
first  mentioned.^ 

II.  ExEcuTOES,  Administrators,  etc. 

§403.  Money,  credits  and  property  are  in  the  custody  of  the 
law  when  held  by  executors,  administrators,  guardians  and 
lilvC  ^M«s?!-officers  in  their  representative  and  administrative 
capacity.  They  are  accountable  to  courts  for  what  they  ad- 
minister, and  there  is  ordinarily  the  same  reason  that  the  law's 

1  Ash  V.  Aiken,  3  Tex.  App.  83 ;  man  v.  Wetherell,  46  la,  89 ;  Staples 
Ash  V.  Calhoun  (Tex.),  21  S.  W.  619 ;  v.  Staples,  4  Me.  532 ;  Riley  v.  Hirst, 
Focke  V.  Blum,  82  Tex.  439 ;  Harrell  2  Pa.  St.  346 ;  Kennedy  v.  Aldridge, 
V.  Cattle  Co.,  73  id.  614.  See  Platts-  5  B.  Mou.  141 ;  Weaver  v.  Davis,  47 
burgh  Bank  v.  Braiuard,  28  Fed.  917.  111.  235 ;  Woodbridge  v.  Morse,  5  N.  H. 

2  Lucas  V.  Campbell,  88  111.  447;  519;  Tucker  r.  Butts,  6  Ga.  580;  Mann 
Thayer  v.  Sherman,  12  Mass.  441 ;  v.  Buford,  3  Ala.  312 ;  Re  Flandrow, 
Narramore  v.  Clark,  63  N.  H.  166 ;  20  Hun,  36. 

Kelly  V.  McMinniman,  58  id.  288 ;  Co-        3  Ee  Flandrow,  20  Hun,  36. 
burn   V.  Ansart,  3   Mass.  319 ;  Hoff- 


292 


LEGAL    CUSTODY    KELATIVE    TO    GARNISHMENT. 


[§  404. 


custody  of  things  and  credits  should  not  be  disturbed  in  their 
hands  as  there  is  for  non-disturbance  in  the  hands  of  a  sheriff 
or  other  officer.^ 

So  soon  as  the  funds  held  b}''  an  executor,  etc.,  cease  to  be 
in  the  custody  of  the  law  and  become  recoverable  as  belong- 
ing to  some  person,  legatee,  heir,  etc.,  the  rule  ceases  to  be 
applicable.  So  also  if  he  is  garnishable  by  statute;  not,  if 
the  statute  forbids.'-  There  is  sometimes  a  nice  question  as 
to  the  time  when  an  administrator's  relation  to  a  fund  or  to 
property  is  so  changed  as  to  render  him  amenable  to  gar- 
nishment ;  but  it  is  certain  that  he.,  is  liable  when  his  custody 
ceases  to  be  "  the  custody  of  the  law  "  in  its  technical  signifi- 
cation.^ 

§  404.  A  distributive  share  of  an  estate  may  be  attached  in 
a  suit  against  the  distributee  as  soon  as  an  administrator  has 


1  Roth  V.  Hotard,  32  La.  Ann.  280 ; 
Deblieux  v.  Dotard,  31  id.  194 ;  Viei- 
beller  v.  Brutto,  6  111.  App.  95; 
Brooks  V.  Cook,  8  Mass.  346 ;  Barnes 
V.  Treat,  7  Mass.  271 ;  Davis  v.  Da- 
vis, 2  Cush.  Ill ;  Gassett  v.  Grout, 
4  Met.  (Mass.)  486 ;  Waite  v.  Osborne, 
11  Me.  185;  Commercial  Bank  v. 
Neallj-,  39  id.  402 ;  Hansen  v.  Butler, 
48  id.  81 ;  Sime's  Estate,  Messick's  Pro- 
bate (Cal.),  100 ;  Winchell  v.  Allen,  1 
Ct.  385 ;  Force  v.  Brown,  32  N.  J.  Eq. 
118;  Conway  v.  Armington,  11  R.  L 
116;  Perry  v.  Thornton,  7  id.  15; 
Davis  V.  Drew,  6  N.  H.  399 ;  Beck- 
with  V.  Baxter,  3  id.  67;  Bank  of 
Chester  v.  Ralston,  7  Pa.  St.  482; 
Hess  V.  Shorb,  id.  231;  Parker  v. 
Donnally,  4  W.  Va.  648 ;  Welch  v. 
Gurley,  2  Hayw.  334;  Thorn  r. 
Woodruff,  5  Ark.  55 ;  Fowler  v.  Mc- 
Clelland, id.  188 ;  Shewell  v.  Keen,  2 
Wharton,  332;  Barnett  v.  Weaver, 
id.  418 ;  Post  v.  Love,  19  Fla.  634 ; 
Marvel  v.  Houston,  2  Harrington, 
349 ;  Tillinghast  v.  Johnson,  5  Ala. 
514;  Mock  v.  King,  15  id.  66;  Pic- 
quett  V.  Swan,  4  Mason,  443;  Gee  v. 
Warwick,  2  Hayw.  354;  Young  v. 
Youug,  2  Hill  (S.  C),  425 ;  Godbold 


V.  Bass,  12  Rich.  202 ;  McCreary  v. 
Topper,  10  Pa.  St  419;  Harrington 
V.  La  Roche,  13  Oreg.  344. 

2  Robinson  v.  Howard,  7  Cush.  257 ; 
Zurcher  v.  Magee,  2  Ala.  253. 

3  Boyer  v.  Hawkins  (la.),  52  N.  W. 
659 ;  Norton  v.  Clark,  18  Nev.  247 ; 
Meigs  V.  Weller,  90  Mich.  629 ;  Backus 
V.  Kimball,  62  Hun,  122 ;  Case,  etc. 
Co.  V.  Miracle,  54  Wis.  295 ;  Crown- 
over  V.  Barnburg,  2  Bradw.  162; 
Whitehead  v.  Coleman,  31  Gratt. 
784  (see  Palmer  v.  Noyes,  45  N.  H. 
174) ;  Hoyt  v.  Christie,  51  Vt.  48 ;  Bur- 
leson V.  Milan,  56  Miss.  399 ;  Fitchett 
V.  Dolbee,  3  Harrington  (Del.),  267 ; 
Stratton  v.  Ham,  8  lud.  84 ;  Piper  n 
Piper,  2  N.  H.  439 ;  Cady  v.  Coraey, 
10  Met.  (Mass.)  459;  Hoar  v.  Mar- 
shall, 2  Gray,  251 ;  Wheeler  v.  Bowen, 
20  Pick.  563 ;  Holbrook  v.  Waters,  19 
id.  354 ;  Woodward  v.  Woodwai'd,  4 
Halst.  115;  Terry  r.  Lindsey,  3  Stew. 
&  Port.  317 ;  Holman  v.  Fisher,  49 
Miss.  472;  Cummings  v.  Garvia,  65 
Me.  301 ;  Adams  v.  Barrett,  2  N.  H. 
374 ;  Richards  v.  Griggs,  16  Mo.  416 ; 
Curling  v.  Hyde,  10  id.  374 ;  Raefle 
V.  Moore,  58  Ga.  94 ;  Parks  v.  Cush- 
man,  9  Vt  320;  Hartle  v.  Long,  5 


§  405.]  EXECUTOKS,  ADMINISTEATORS,  ETC.  293 

given  bond  and  received  letters,  in  Massachusetts.  The  ad- 
ministrator may  be  garnished  there  for  the  share  "  eventually 
to  come  into  his  [the  distributee's]  hands"  ^  But  the  garnish- 
ment holds  only  when  the  estate  is  so  far  settled  as  to  show 
that  there  will  be  a  balance  to  be  distributed.-  The  admin- 
istrator may  be  garnished  in  that  state  when  holding  for  the 
defendant  by  a  title  void  as  to  creditors.^ 

Money  decreed  by  a  probate  court  to  be  paid  to  a  defend- 
ant, but  deposited  in  bank,  on  his  refusal  to  accept  it,  by  the 
administrator,  was  held  not  subject  to  trustee  process  in  the 
suit  against  him  for  his  debt.*  An  allowance  for  the  support 
of  a  widow  has  been  held  not  liable  to  garnishment  in  the 
administrator's  hands.'^ 

§  405.  An  executor's  right,  conferred  by  the  will  of  the  tes- 
tator, to  sell  the  property  of  the  estate,  cannot  be  defeated  by 
an  attachment  suit  against  one  of  the  heirs  and  devisees,  in 
which  the  latter's  interest  is  attached  and  the  executor  made 
garnishee.^  It  can  have  no  effect  on  the  executor's  right  to 
sell  and  convey  the  property.^  The  purchaser  at  such  sale 
would  obtain  a  good  title,  notwithstanding  the  garnishment 
of  the  executor  with  reference  to  such  interest.^  ]^ot  till  the 
final  order  of  distribution  can  an  executor  or  administrator  be 
garnished  for  the  interest  due  a  particular  heir  or  devisee.^ 

Pa.   St.  491 ;  Hicks  v.  Chapman,  10  Mass.  302,  and  citing  Massachusetts 

Allen,  463 ;  Bartell  v.  Baumau,  12  111.  N.    Bank    v.    Bullock,    120   id.   86 ; 

App.  450.  Field  v.  Crawford,   6  Gray,   116-7; 

1  Mechanics'   Bank  v.   Waite,   150  Folsom  v.  Haskell,  11  Cush.  470.   See 
Mass.  234;  Capen  r.  Duggan,  136  id.  Tuck    v.    Manning,    150  Mass.   211; 
501 ;  Davis  v.  Davis,  2  Cush.  Ill,  114 ;  Hancock  v.  Colyer,  103  id.  396. 
Boston   Bank  v.  Minot,  3  Met.  507,  ^Barnum  u.  Boughton,  55  Ct  117. 
510 ;  Wheeler  v.  Bowen,  20  Pick.  563.  6  Smyth  v.  Anderson,  31  Ohio  St. 

2  Mechanics' Bank  r.  Waite,  s«jjra;  144;  Nickerson  v.  Chase,  122  Mass. 
Vautine  v.  Morse,  104  Mass.  275;  296;  Force  v.  Brown,  32  N.  J.  Eq. 
Hoar  V.  Marshall,  2  Gray,  253;  Bev-  118. 

erstock  v.  Bi-own,  157  ]\Iass.  565.  "^  Allison  v.  Wilson's  Ex'rs,  13  Serg. 

3  Harmon  v.  Osgood,  151  Mass.  501 ;    &  Rawle,  330. 

Sherman  v.  Davis,  137  id.  132;  Pratt  » Smyth  v.  Anderson,  31  Ohio  St. 

V.  Wheeler,  6  Gray,  523.  144. 

•*  Chase  r.  Thompson,  153  Mass.  14  8  Threshing  Machine   Co.   v.   Mir- 

<Pub.  Stat.  Mass.,  c.  144,  §  16),  dis-  acle,  54  Wis.  295 ;  Harrington  v.  La 

tinguishing    Haskell    v.    Haskell,  8  Rocque,  13  Oreg.  344. 
Met.  545,  and  Estabrook  v.  Earle,  97 


29i       LEGAL    CUSTODY    RELATIVE    TO    GARNISHMENT.       [§§  406-408. 

§  406.  If  the  attachino'  creditor  is  the  administrator  of  an 
estate,  he  cannot  garnish  himself  so  as  to  reach  the  funds  in 
his  own  hands  and  render  them  available  to  subserve  his  own 
interest  as  attaching  creditor.^  JS'or  can  an  administrator  be 
garnished  in  official  capacity  in  a  suit  against  himself  in  pri- 
vate capacity.  The  creditor  of  an  administratrix  garnished 
her  as  such  in  a  suit  against  her  personally.  The  garnishment 
was  discharged,  because  judgment  against  her  as  garnishee 
would  have  been  no  better  than  the  one  already  obtained 
against  her  in  her  private  capacity.^ 

A  garnishee  summoned  as  the  executor  of  one  cannot  be 
charged  as  the  executor  of  another,  though  he  have  property 
of  the  debtor  in  his  latter  capacity.'  The  commissions  of  an 
executor  are  not  liable  to  attachment  in  his  own  hands  or  in 
those  of  other  executors.* 

The  reason  why  an  administrator  or  executor  cannot  be 
garnished  in  a  suit  against  the  estate  he  administers  is  that  he 
is  not  the  attorney,  agent,  factor,  trustee  or  debtor  of  such 
estate.^ 

§  407.  Wo  judgment  for  a  specific  sum  can  be  rendered 
against  an  executor  w^ho  answers,  as  garnishee  in  a  suit  against 
an  heir,  that  there  will  be  a  portion  due  the  defendant  after 
the  settlement  of  the  succession.^  What  sum  will  then  be 
due  is  a  matter  of  contingency.  Debts,  legacies  and  costs 
must  first  be  paid,  and  there  is  not  such  certainty  of  fact 
that  the  executor  holds  property  or  mone}''  belonging  to  the 
defendant  as  would  justify  holding  the  executor  liable  as  gar- 
nishee under  his  answer  setting  forth  such  a  state  of  things. 
The  executor  is  not  the  creditor  of  the  heir,  and  it  is  not  cer- 
tain that  he  is  the  custodian  of  any  property  of  his. 

§  408.  When  the  succession  has  been  settled,  and  the  sum 
due  or  the  property  belonging  to  the  heir  has  become  certain, 
the  attaching  plaintiff  might  successfully  renew  the  garnish- 
ment, but  the  executor  is  not  liable  while  it  remains  uncertain 
whether  there  will  be  anything  to  pay  over  to  the  defendant 
in  the   attachment  suit.     Should  he,  feeling  confident  that 

1  Hoag  V.  Hoag,  55  N.  H.  172.  "  Adams'  Appeal,  47  Pa.  St.  94. 

2  Shepherd  v.  Bridenstiae,  80  la.  ^  Convvay  v.  Armington,  11  R.  I. 
225.  116. 

3  Smith's  Appeal,  108  Pa.  St.  508,  6  Roth  v.  Hotard,  32  La.  Ann.  280. 


§  409.]  EXECUTORS,  ADMINISTEATOKS,  ETC.  295 

there  will  be  something  beyond  the  debts  of  the  succession; 
retain  in  his  hands  enough  to  meet  the  demands  of  the  at- 
taching creditor,  and  pay  over  the  balance  to  the  heirs  or 
legatees  or  their  attorney,  taking  a  receipt  showing  that  the 
sura  withheld  is  for  the  purpose  stated,  such  sum  cannot  be 
considered  an  appropriation  to  the  attaching  creditor.^  The 
creditor  could  not  claim  that  he  thus  has  acquired  a  legal 
right  to  it. 

After  an  estate  has  been  settled,  and  suit  has  been  brouo-hb 
by  attachment  against  one  whose  share  therein  has  been 
ascertained,  and  garnishment  of  the  executor  in  his  personal 
capacity  has  been  made,  the  garnishee  will  be  held  charge- 
able, as  already  shown.  The  administrator  will  not  be  allowed 
to  hold  the  fund  in  his  hands  m  his  official  capacity,  under 
such  circumstances,  to  shield  the  heir  from  the  payment  of  a 
just  debt,  and  to  hinder  the  attaching  creditor  from  making 
his  money.  The  case  is  very  different  from  that  where  the 
estate  remains  unsettled,  debts  due  by  the  succession  unpaid, 
and  legacies  not  distributed.  In  the  latter  case  the  executor 
cannot  be  compelled  to  pay  hy  process  of  garnishment  sued 
out  even  by  the  judgment  creditor  of  an  heir  w^hose  portion 
still  remains  unseparated  from  the  mass  of  the  estate.^  It  is 
not  till  the  executor  is  ready  to  pay  over  to  the  heir  that  he 
is  liable  to  garnishment  in  an  attachment  suit  ag-aint  the  heir. 
A  moneyed  bequest  for  the  devisee's  support,  with  the  re- 
mainder to  others,  is  not  attachable  in  the  executor's  hands.' 

§  409.  Since  the  executor  or  administrator  is  the  proper  col- 
lector of  debts  due  the  estate  of  the  decedent,  as  well  as  the 
proper  custodian  of  the  funds  when  collected,  they  cannot  be 
reached  by  a  creditor  of  the  estate  through  the  process  of 
garnishing  the  debtor,'* 

Garnishment  proceedings  cannot  be  revived  against  the  ad- 

1  Raefle  v.  Moore,  58  Ga.  94.  rendered  in  favor  of  a  creditor  of  the 

2  Deblieux  v.  Dotard,  31  La.  Ann.  legatee.  Force  v.  Brown,  32  N.  J. 
194  In  New  Jersey,  held  that  money  Eq.  118;  Post  v.  Love,  19  Fla,  634. 
in  the  hands  of  an  executor,  due  to  See  Piper  v.  Piper,  3  N.  H.  439. 

a  legatee,  constituted  an  active  trust        3  Chase  v.  Currier,  63  N.  H.  90. 
exempt  by  statute,  so  that  it  could        *  Marvel  v.  Houston,  2  Harr.  (Del.) 
n  Jt  be  reached  to  satisfy  a  judgment    349. 


296      LEGAL    CCSTODY   KELATIVE    TO    GARNISHMENT.       [§§  410,  411. 

ministrator  of  a  garnishee  who  has  died  without  answering  or 
being  defaulted.^ 

Guardians  are  not  liable  as  garnishees  for  the  funds  or  prop- 
erty of  their  wards.^ 

§410.  Frisoners  property. —  Whether  money  and  effects 
taken  from  a  prisoner  by  a  sheriff  for  safe-keeping  and  to 
prevent  improper  use  of  them  maj^  be  reached  in  the  officer's 
hands  by  attachment  or  garnishment  at  the  suit  of  the  pris- 
oner's creditor  has  been  decided  affirmatively  by  some  courts 
and  negatively  by  others.  The  reason  for  holding  such  prop- 
erty liable  is,  that  if  it  is  lawfully  in  the  hands  of  the  officer 
(by  express  authority  of  statute,  it  may  be)  the  case  is  like 
that  of  any  third  person  holding  lawfully  the  effects  of  a 
debtor.^  On  the  other  hand,  the  sheriff  takes  the  money  or 
property  without  the  assent  of  the  prisoner;  holds  it  as  a 
legal  custodian;  and  there  is  not  the  proper  privity  between 
him  and  the  prisoner  to  warrant  the  reaching  of  the  property 
in  his  hands  by  the  creditor.  For  these  or  like  reasons  the 
creditor  has  been  denied  the  remedy.*  The  same  rule  has  been 
applied  when  a  prisoner's  money  was  taken  and  held  by  the 
warden  of  a  prison.^  So  money  and  effects  taken  by  police 
officers  from  prisoners  arrested  by  them  have  been  held  not 
subject  to  garnishment,  whether  legally  taken  by  such  offi- 
cers or  not.^ 

§  411.  In  Ex  parte  Hurn,  siijyra,  the  principal  cases  are  ably 
reviewed,  and  the  conclusion  reached  seems  sound:  that  if 
the  money  or  effects  of  a  prisoner  are  taken  by  the  officer  in 
pursuance  of  his  duty  —  not  by  trickery  or  violence  —  he  may 
be  garnished  by  the  prisoner's  creditor.  The  money  or  goods, 
if  taken  by  authority  of  law,  are  in  custodia  legis  till  the  time 
when  they  should  be  returned,  and  when  they  may  be  re- 
covered by  the  prisoner;  thereafter  thev  may  be  reached  by 
garnishment  like  other  money  or  property  held  by  a  sheriff 

1  White  t\  Ledyard,  4»  Mich. 'J64.     App-X    18   S.    W.    195;    Commercial 

2  Vierbeller  v.  Brutto,  6  111.  App.  95.     Bauk  v.  McLeod,  65  la.  665  :  54  Am. 
3.Hurn,  Ex  ixirte,  92  Ala.  102 ;  Giles    Rep.  36 ;  Dalims  v.  Sears,  13  Oreg.  47. 

V.  Devens,  11  Cush.  61 ;  Warren  v.  See  Pomroy  v.  Parnelle,  9  la.  140. 

Matthews,  96  Ala.  183 ;    Classon  v.  &  Davies  v.  Gallagher,  17  Phila.  229. 

Morrison,  47  N.  H.  483 ;  Reifsnider  v.  6  Connolly  v.  Thurber  (Ga.),  18  S.  E. 

Lee,  44  la.  161.  1004. 
4  Richardson     v.    Anderson    (Tex. 


g  -±12.]  ASSIGNMENT,  RELATIVE    TO    GARXISHMEXT.  297 

for  no  purpose  but  to  be  paid  over.  Bat  if  the  money  or  ef- 
fects have  been  taken  from  the  prisoner  illegalh'",  by  fraud  or 
violence  —  especially  if  taken  at  the  nstigation  of  the  pris- 
oner's creditor  for  the  purpose  of  attaching  in  the  officer's 
hands, —  the  conclusion  is  that  garnishment  is  not  permissible. 
Especially  should  the  creditor  who  caused  the  illegal  taking 
be  debarred  from  the  remedy.  There  is  force  in  the  argu- 
ment that  the  prisoner  ought  to  pay  his  debts,  and  therefore 
should  not  be  protected  from  the  attachment  of  his  means  of 
paying  when  found  out  of  his  pockets  and  susceptible  of  being 
reached. 

In  Burr  v.  Mathers  ^  it  is  held  that  property,  to  be  in  cus- 
todia  legis,  must  have  been  legally  taken  by  the  holder,  which 
accords  with  the  case  above,  and  with  man}"  others;  but  it  is 
not  fully  settled  that  the  garnishment  of  a  prisoner's  effects 
depends  upon  the  legality  of  the  officer's  possession. 

III.  Assignment,  Relative  to  Garnishment.^ 

§  412.  Talid  assignment  hefore  garnishment. —  What  is  val- 
idly assigned  cannot  be  subsequently'-  reached  by  garnishment 
in  a  suit  against  tlie  assignor.  He  no  longer  owns  or  controls 
it.  It  is  as  though  it  had  been  honestly  sold  and  delivered 
by  him  at  a  time  when  he  had  a  perfect  right  to  do  so. 
AVhether  he  has  made  a  general  assignment  for  the  benefit  of 
his  creditors,  or  has  legally  conveyed  to  a  single  creditor,  in 
good  faith  and  at  a  time  not  suspicious,  he  has  lost  the  pro- 
prietorship and  control  of  it ;  and  no  attachment  plaintiff  can 
thereafter  step  into  his  shoes  and  successfully  garnish  the  as- 
signee ;  for  the  latter,  upon  disclosing  the  assignment,  may 
truthfully  answer  that  he  has  nothing  belonging  to  the  de- 
fendant. That  a  valid  assignment  precludes  garnishment  is 
well  settled.^     If  the  assignment  be  posterior  to  the  garnish- 

1 51  :Mo.  App.  470.  Smith,  64  N.  H.  615 ;  Lewis  v.  Board, 

2  Only   official    assignees    hold   in  14  Colo.   371 ;  Lord  v.   Meacliem,  '62 

legal  custody,  but  others  are  treated  Minn.  66 ;  Taf t  v.  Bowker,  132  Mass. 

with  them,  relative  to  garnishment,  277;  Norton  v.  Insurance  Co.,  Ill  id. 

under  tliis  and  the  following  head.  533 ;  Burrows  v.  Glover,  106  id.  324 ; 


» Drake  v.  Leighton,  69  Wis.  99 
Farwfell  V.  Wilmarth,  65  id,  160 
Goode  V.  Barr,  64  id.  659 ;  Horn  v. 
Booth.  22  111.  App.  385;  Kiely  v 
Bertrand,   67   Mich.   332;  Abbott  v. 


Providence  Bank  v.  Benson,  24  Pick. 
204 :  Burlock  v.  Taylor,  16  id.  335 : 
Martin  v.  Potter.  11  Gray.  37;  Wake- 
field V.  Martin,  3  Mass.  558;  Daniels 
V.   WiDard,    16   Pick.    36;    Page    v. 


298  LEGAL    CUSTODY    EELATIVE    TO    GAKNISHMENT.  [§  413. 

ment  it  will  not  hold  against  it,  though  disclosed  without  a 
statement  of  its  date;  for,  upon  proof  of  its  having  been 
made  subsequent  to  the  sumnions,  on  traverse  of  the  answer 
the  garnishment  will  be  maintained.^ 

§■±13.  Form  of  valid  assignment. —  A  valid  assignment  is 
usually  written,  especially  when  it  is  general  for  the  benefit 
of  creditors.  It  must  substantially  conform  to  statute,  both 
in  form  and  matter,  when  it  is  statutory.  But  the  mere 
transfer  by  delivery  of  the  notes,  bonds,  leases,  certificates  of 
indebtedness  and  any  written  evidence  of  debt,  for  lawful 
consideration,  so  as  to  enable  the  recipient  to  sue  upon  such 
paper  in  the  assignor's  name,  is  a  good  equitable  assignment 
that  will  preclude  subsequent  garnishment.-  If  such  paper  is 
conveyed  by  written  words  upon  it,  signed  by  the  person 
transferring  and  delivering  it  for  valuable  consideration,  the 
assignment  will  enable  the  recipient  to  sue  upon  the  obliga- 
tion in  his  own  name.  There  may  be  oral  assignment  of  an 
obliiration  which  is  not  in  writing.  The  essential  in  such  case 
is  that  the  obligor  consent  to  pay  the  assignee;  and  on  his 
disclosure  of  such  assignment  prior  to  his  summons  as  gar- 
nishee he  will  be  discharged.^ 

If  assignment  has  been  consummated,  though  out  of  the 
usual  form,  the  garnishee  in  a  suit  against  the  assignor  must 

Crosby,    24     id.     211;     Whipple    v.  2  Phila.   354;  Walling  v.   Miller,  15 

Thayer,  id.   25 ;  Van  Buskirk   v.  In-  Cal.  38 ;  Shattuck  v.  Smith,  16  Vt. 

surance  Co.,  14  Ct.  583 ;  Northam  v.  132. 

Cartwright,    10  R.    I.    19 ;    Noble  v.  i  Southern  Md.  R  Co.  v.  Moyer,  125 

Smith,  6  id.  446;  Lee  v.  Robinson,  15  Pa,  St.  506;  Reeve  v.  Smith,  113  III. 

id.   369;  Insurance  Co.   of  Pennsyl-  47;  Alvesr.  Baker  (R.  1),  24  A.  528; 

vania  v.  Phoenix  Ins.  Co.,  71  Pa.  St.  Stevens  v.  Pugh,  12  la.  430. 

31;    Patten  v.    Wilson,    34   id.  299;  2  Norton  f.  Insurance  Co.,  Ill  Mass. 

Russell    V.    Tunno,     11    Rich.    303;  532  ;  Dennis  u  Twitcheil,.  10  Met.  180; 

Princeton  Manuf.  Co.  v.  White,   68  Hardy  v.  Colby,  42  Me.  381 ;  Cairo, 

Ga.  96;  Carr  v.  Waugh,  28  111.  418;  etc.  R.  Co.  v.  Killenberg,  82  111.  295; 

Hodson  V.   McConnell,    12    id.    170 ;  Byars  v.  Griffin,  31  Miss.  603. 

Forepaughv.  Appold,  17B.  Mon.  625;  3  Ponton  v.  Griffin,  72  N.  C.  362: 

Balderstone  v.  Manro,  2  Cr.  C.  C.  623 ;  Curie  v.  Insurance  Co.,  12  Mo.  578 ; 

Littlefield    v.    Smith,    17    Me.    327 ;  Black  v.  Paul,  10  id.  103 ;  Lovely  v. 

Hardy  v.  Colby,  42  id.  381 ;  Porter  v.  Caldwell,   4  Ala.   684 ;    Hutchins  v. 

Bullard,  26  id.  448 ;  Dennis  v.  Twich-  Watts,  35  Vt.  360 ;  Noyes  v.  Brown, 

ell,  10  Met.   180;  Byars  v.  Griffin,  31  33  id.  431;  Rudd  v.  Payne,  2  Cr.  C. 

Miss.   603;  Matheson  v.  Rutledge,  12  C.    9;   Newby   v.   Hill,   2  Met.   530; 

Rich.  41 :  Canal  Co.  v.  Insurance  Co.,  Marlin  v.  Kirksey,  23  Ga.  164 


g,^  414,  415.]       ASSIGNMENT,  RELATIVE    TO    GARNISHMENT.  2'JO 

be  discharged.^     It  is  held  that  the  lack  of  legal  form  may  be 
supplied  after  service  of  the  garnishment.^ 

§  414.  Assif/nmcnt  to  trustee  for  the  henefit  of  creditors. — 
An  assignment  by  an  insolvent  debtor  to  trustees  for  the  pay- 
ment of  his  creditors  jjro  rata  will  not  render  the  trustees 
liable  to  garnishment  at  the  suit  of  one  of  his  creditors  while 
the  trust  remains  unclosed  and  the  creditor  not  yet  entitled 
to  a  dividend.'  After  such  assignment  money  due  the  as- 
signor cannot  be  reached  by  any  creditor  through  the  process 
of  garnishment.''  The  official  assignee  of  an  insolvent  is  not 
garnishable.^  If  an  assignee  of  an  insolvent  has  not  come  into 
possession  of  the  property  or  funds  assigned  he  is  not  to  be 
charged.^ 

§  415.  Excess. —  Though  the  assignment  be  valid  it  does 
not  convey  any  excess  of  the  amount  assigned.  Any  surplus 
remaining  in  the  hands  of  the  assignee  after  he  has  dis- 
charged  his  trust  is  liable  to  be  attached  in  his  hands  in  a  suit 
aofainst  the  assignor."  When  the  assignee  of  an  insolvent  has 
sold  assigned  property  under  an  order  of  court,  if  a  part  of 
the  proceeds  belong  to  a  third  person  it  may  be  attached  by 
garnishment  of  the  assignee  in  a  suit  against  the  owner.^  But 
the  excess  of  an  assignment  cannot  be  subjected  to  garnish- 

1  Van  Winkle  v.  Iowa,  etc.  Co.,  56  land.  75  Ala.  530 ;  Oliver  v.  Smith,  5 

la.  245;  Cammack  v.  Floyd,  10  La.  Mass,  183;  Torrens  v.  Hammond,  10 

Ann.  351 ;  Brooks  v.  Hildreth,  22  Ala.  Fed.  900 ;  In  re  Chisholm,  4  id.  526, 

469 ;  Ray   v.   Faulkner,   73  111.  469 ;  5  Lord  v.  Meachem,  32  Minn.  66. 

Simpson  v.  Bibber,  59  Me.  196 ;  Davis  ^  Cleveland  Stove  Co.  v.  Wilson,  80 

r.  Taylor,  4  Martin,  N.  S.  (La.)  134.  la.  697. 

-  United  States  r.  Vaughan,  3  Bin-  '>  Barker  v.  Osborne,  71  Me.  69 ;  Ab- 

ney,  394.                                            '  bott  v.  Stinchfield,  id.  213 ;  Giles  v. 

3  Massachusetts  National  Bauk  v.  Ash,  123  Mass.  353 ;  Everett  v.  Wol- 

Bullock,   120  Mass,  86;  Mansfield  v.  cott,  15  Pick.  97;  First  N.  Bank  v. 

Rutland  Manuf.  Co..  52  Vt.  444.     In  Portland,   etc.    R   Co.,   2  Fed.    831 ; 

this  case  the  trust  required  that  the  Schoolher  v.  Hutchins,  66  Tex,  324; 

creditors  be  paid  pi'o  rata,  but  the  Huffman  v.  Templeton  (Tex.),  14  S, 

trustees  seem   to  have  made  some  W,  1015, 

preferences    among    the    creditors.  s  Fogler  v.   Marston,  83  Me.  396 : 

Yet,  in  the  attachment  suit,  it  was  Holt  v.  Libbey,  80  icL  329 ;  Sawyer 

doubtless  correctly  decided  that  they  v.  Sawyer,  74  id.  580 ;  Ladd  v.  Ja- 

could  not  be  made  garnishees.  Schlae-  cobs,  64  id.  347;  Webster  v.  Adams, 

ter  V.  Raymond,  7  Neb.  281.  58  id.  317 ;  Denuison  v.  Benner,  36  id. 

*  Dehner  v.  Helmbacher  Forge,  etc,  227, 
Mills,  7  III.  App.  47;  Avery  v.  Lack- 


300        LEGAL  CUSTODY  KELATIVE  TO  GARNISHMENT.    [§  416. 

ment  in  the  assignee's  hands  if  the  terras  were  that,  after  sat- 
isfying his  own  claim,  the  balance  should  be  paid  to  another 
creditor.^ 

A  debtor  deposited  his  insurance  policy  with  a  creditor  to 
secure  him ;  then  assigned  the  excess  to  another  creditor  to 
satisfy  him:  a  third  creditor  could  not  attach  the  policy  in 
the  hands  of  the  first,  whose  lien  must  first  be  satisfied,  and 
the  assignee  must  be  paid  next.^ 

§  416.  AcGci)tance  %  assignee. —  Acceptance  by  the  assignee 
is  necessary  to  complete  the  assignment.^  If  he  has  accepted 
and  notified  the  assignor's  debtors  before  their  summons  as 
garnishees,  or  before  their  disclosure;  or  if  the  assignor,  after 
such  acceptance,  has  given  them  an  order  to  pay  to  the  as-- 
sio^nee,  thev  cannot  be  charged  in  a  suit  against  the  assignor.'* 
Acceptance  by  the  assignee  being  essential,  a  mere  direction 
by  the  defendant  to  his  debtors  to  pay  to  him  without  his 
knowledge  or  assent  would  not  prevent  their  successful 
garnishment.^ 

If  the  garnishee  sets  up  a  valid  assignment,  duly  accepted, 
and  his  receipt  of  an  order  (from  the  defendant  to  pay  to  the 
assignee)  before  his  summons,  he  must  be  discharged.^ 

1  Hughes  V.  Sprague,  4  111.  App.  301,  man  v.  Haynes,  20  Pick.  132 ;  Wood- 

2  Hendeisou  v.  Alabama  Gold  Ins.  bridge  v.  Perkins,  3  Day,  364 ;  Baker 
Co.,  72  Ala.  32.  v.  Moody,  1  Ala.  315 ;  Myatt  v.  Lock- 

3  Keithley  v.  Pitman,  40  Mo.  App,  hart,  9  id.  91 ;  Clark  v.  Cilley,  36 
596 ;  Burger  v.  Burger,  135  Pa.  St.  id.  652 ;  Hearn  v.  Foster,  21  Tex.  401 ; 
499.  Massachusetts  Nat.  Bank  v.  Bullock, 

4  Dobbins  v.  Hyde,  37  Mo.  114;  120  Mass.  86;  Kelly  v.  Eoberts,  40 
Botsford  V.  Simmons,  32  Mich.  352;  N.  Y.  432;  McCoid  v.  Beatty,  12  la. 
Legro  V.  Staples,  16  Me.  252;  Colt  n  299;  Mayer  i'.  Chattahoochie  Na- 
Ives,  31  Conn.  25 ;  Adams  v.  Eobin-  tional  Bank,  51  Ga.  325 ;  Redd  v. 
son,  1  Pick.  461 ;  Mansard  v.  Daley,  Burns,  58  id.  574 ;  Briggs  v.  Block,  18 
114  Mass.  408;  Newell  v.  Blair,  7  Mo.  281;  Sproule  v.  McNulty,  7  id. 
Mich.  103;  Dwight  u.  Bank  of  Mich-  62:  Botsford  v.  Simmons,  32,  Mich, 
igan,  10  Met.  (Mass.)  58 ;  Bourne  v.  352 ;  Brown  v.  Foster,  4  Cush.  214 ; 
Cabot,  3  id.  305;  Ward  v.  Lewis,  4  Mansard  v.  Daley,  114  Mass.  408; 
Pick.  518;  Cuttsn  Perkins,  12  Mass.  State  v.  Brownlee,  2  Speers,  519; 
206 ;  Botsford  v.  Simmons,  32  Mich.  Dolsen  v.  Brown,  13  La.  Ann.  551 ; 
352  ;  Van  Staphorst  v.  Pierce,  4  Mass.  Connelly  v.  Harrison,  16  id.  41 ;  Mc- 
258 ;  Colman  v.   Scott,  27  Neb.  77 ;  Guire  v.  Pitts,  42  la.  535. 

Lewis  V.  Board  of  Com'rs,  14  Colo.  ^  Nesmith  v.  Drum,  8  Watts  &  S.  9 ; 

371.  Lampkin   v.  Phillips,  9  Porter,   98; 

5  Center  v.  McQuesten,  18  Kan.  476 ;  Brazier  v.  Chappell,  2  Brevard,  107. 
People  V.  Johnson,  14  111.  342 ;  Cush- 


§  417.]         .     ASSIGNMENT,  RELATIVE    TO    GAKNISHMENT.  301 

An  order  from  a  client  to  bis  attorne}',  in  a  pending  case, 
to  pay  over  whatever  may  be  recovered  to  some  named  third 
person,  is  not  an  assignment  of  the  client's  interest  so  as  to 
defeat  the  garnishment  of  the  credit  in  a  suit  against  him, 
even  though  the  attorney  should  consent  to  comply  with  the 
request.^ 

An  assignment  for  the  benefit  of  creditors,  accepted  by  the 
assignee  but  not  by  all  the  creditors,  will  not  preclude  the 
garnishment  of  a  debt  due  the  assignor  by  a  creditor  who  did 
not  accept  the  assignment,  unless  it  is  proved  that  the  sum 
held  by  the  garnishee  is  necessary  to  pay  the  creditors  who 
have  elected  to  come  in  under  the  assignment  or  trust  deed.^ 

Garnishment  cannot  affect  a  valid  contract  already  made, 
by  which  the  obligation  of  a  debtor  or  holder  of  property  to 
the  creditor  or  owner  is  transferred  to  another  person.^ 

§417.  Notice  to  assignor's  debtors. —  ISTotice  of  assignment 
should  be  given  to  the  assignor's  debtors  so  that  they  may 
disclose  the  fact  when  garnished.*  If  notified  they  cannot 
withhold  their  knowledge,  when  interrogated,  without  liabil- 
ity to  the  assignee,  though  they  pay  into  court  under  order  ;^ 
but  if  not  notified,  an  acknowledgment  of  indebtedness  to  the 
defendant  assignor,  made  in  ignorance  of  the  assignment,  and 
pajanent  into  court  pursuant  thereto,  under  order,  will  oper- 
ate as  a  full  acquittance  from  the  assignee.^ 

There  is  an  exception  to  the  general  rule.  Negotiable  paper 
may  be  assigned,  without  notice  to  the  maker,  so  as  to  hold 
against  garnishment  of  the  maker.  The  assignee  of  a  chose 
in  action  of  this  character  ranks  above  a  subsequently  attach- 
ing creditor  of  the  assignor  whose  o^arnishment  of  the  assifjn- 

1  White  V.  Coleman,  130  Mass.  316.        »  Colman  v.  Scott,  27  Neb.  77 ;  Good- 

2Douglas  V.  Simpson,  121  Mass.  281.  man  v.  Henley,  80  Tex.  499. 

sVincentr.  Watson,  18  Pa.  St.  ii6;  6  Nichols  v.  Hooper,  61  Vt.  295; 
Watkins  v.  Pope,  38  Ga.  514 ;  Bray  v.  Covert  v.  Nelson,  8  111.  App.  265 ;  Pen- 
Wheeler,  29  Vt.  514 ;  Eussell  v.  Con-  niman  v.  Smith,  5  Lea,  130 ;  Clod- 
vers,  7  N.  H.  343 ;  White  v.  Richard-  felter  v.  Cox,  1  Sueed,  330 ;  Dodd 
son,  12  id.  93 ;  Godfrey  v.  McComber,  v.  Brott,  1  Minn.  270 ;  Robinson  u 
128  Mass.  188 ;  Manchester  v.  Smith,  Mitchell,  1  Harr.  365 ;  Elston  v.  Gillis, 
13  Pick.  113;  Whiting  v.  Earle,  3  id.  69  Ind.  128;  Junction  R.  Co.  v.  Cle- 
201;  Balliet  v.  Scott,  32  Wis.  174;  neay,  13  id.  161;  Clark  v.  King,  3 
Swisher  v.  Fitch,  1  S.  &  M.  541;  Mass.  524;  Dore  v.  Dawson,  6  Ala. 
Nines  v.  Pyle,  4  Houston,  646.  712. 

4  Golson  V.  Powell,  32  La.  Ann.  521. 


302  LEGAL    CUSTODY    RELATIVE    TO    GARNISHMENT.  [§  418. 

or's  debtor  was  served  before  any  notice  of  the  assignment 
had  been  given. ^ 

Any  method  of  notice  that  will  convey  the  necessary  knowl- 
edge will  suffice,  where  no  particular  form  is  prescribed.  The 
service  of  a  copy  of  the  assignment  is  sufficient.^  If  the  as- 
sio-nee  notifies  the  defendant's  debtor  before  the  making  of 
the  disclosure  in  the  garnishment  proceedings  he  will  be  in 
time ;  and  it  has  been  held  that  he  will  be  in  time  if  he  gives 
notice  before  judgment  charging  the  garnishee.^  But  it  has 
been  held  that  a  creditor  who  garnishes  a  bank  to  subject  a 
note  therein  deposited  has  a  right  preferable  to  that  of  an  as- 
signee without  possession,  when  the  bank  has  had  no  notice  of 
the  assignment.^ 

§  418.  Debt  )iot  due. —  A  debtor  cannot  assign  money  not 
earned  but  to  become  due  under  an  appointment  promised 
but  not  obtained,  so  as  to  protect  it  from  garnishment  when 
it  shall  become  due.^  But  when  a  boarding-house  keeper  as- 
signed board  bills,  coming  due,  to  a  bank,  with  the  assent  of 
a  railroad  company  wdiich  agreed  to  pay  dues  of  its  employees 
to  him  for  their  board,  and  his  creditors  sued  him  and  garnished 
the  company,  the  transfer  was  sustained  as  an  equitable 
assignment."  An  existing  debt  may  be  assigned  before  it  is 
due,  so  as  to  prevent  its  subjection  to  garnishment  when  it 
becomes  due,  in  a  suit  against  the  assignor.''  Yet,  in  several 
states,  it  could  be  reached  in  a  suit  against  the  assignee  who 

'  Meier  v.  Hess,  23  Oreg.  509  (in  217 ;  Gates  v.  Kerby,  13  id.  157 ;  War- 
which  Hill's  Ann.  L.,  §  150,  is  con-  ren  v.  Copelin,  4  Met.  594 
strued);  Thayer  u.  Daniels,  113  Mass.  2  Manning  v.  Mathews,  70  la.  303. 
129;  Wood  w.  Partridge,  11  id.  448;  3  Williams  r.  Pomeroy,  27  Minn.  85; 
Dix  u.  Cobb.  4  id.  507;  Fairbanks  v.  Stevens  v.  Stevens,  1  Ashm.  190; 
Sai'geant,  104  N.  Y.  108 ;  Beckwith  v.  Muir  v.  Schenck,  3  Hill,  228 ;  Pell- 
Bank,  9  id.  211;  Muir  v.  Schenck,  3  man  v.  Hart,  1  Pa.  St.  263;  Smith  v. 
Hill  (N.  Y.),  228 ;  Bholen  v.  Cleve-  Sterritt,  24  Mo.  260.  But  see  Ward  v. 
land,  5  Mason,  174 ;  Holt  v.  Babcock,  Morrison,  25  Vt.  593 ;  Barney  v.  Doug- 
63  Vt.  634.  See  Spain  v.  Hamilton's  lass,  19  id.  98;  Case  v.  Haughtoo,  16 
Adm'r,  1  Wall.  624 ;  Campbell  V.  Day,  id.  594;  Bishop  r.  Holcomb,  10  Ct. 
16  Vt.  558 ;  Van  Buskirk  v.  Insurance  444 ;  Judah  v.  Judd,  5  Day,  534. 
Co.,  14  Ct.  141 ;  Hobson  v.  Stevenson,  ^  pirgt  N.  Bank  v.  Van  Brockliu,  76 
I  Tenn.  Ch.  203;  Clodfelter  v.  Cox,  1  la.  761. 

Sneed,   329;   Garrett   v.   Jaffray,    10  ^Eagan   v.   Luby,    133    Mass.   543. 

Bush,   413;  Murdoch  v.   Finney,  21  ^Y^e  Fuller  v,  O'Prien,  121  id.  422. 

Mo.   139.     Compare   Funkhouser    v.  •>  Chamberlin  v.  Gilman,  10  Colo.  94. 

Howe,  24  Mo.  44 ;  Dickey  v.  Fox,  id.  7  Eagan  V.   Luby,  133  Mass.   543 ; 


§§  419,  420.]       ASSIGNMENT,  RELATIVE    TO    GARNISHMENT.  303 

claims  to  own,  though  the  garnishee  could  not  be  made  to 
pay  into  court  before  maturity.^ 

§  419.  Duty  to  disclose. —  A  garnished  debtor  of  the  defend- 
ant, who  knows  of  the  valid  assignment  of  the  debt  yet  fails 
to  disclose  it  and  answers  so  as  to  be  charged,  is  not  relieved 
from  a  subsequent  claim  of  the  assignee.^  An  assignee  for 
the  benefit  of  creditors  may  be  compelled  to  disclose  by  a 
court  other  than  that  where  his  inventory  and  bond  are  filed.* 

§  420.  Assignee  as  a  iHirtij. —  An  assignee  intervening  must 
prove  what  is  due  to  him.*  He  may  prove  his  agreement 
with  the  garnishee  touching  property  put  by  him  in  the  gar- 
nishee's hands  for  sale,  when  the  proceeds  of  the  sale  are  the 
matter  in  question.^  If  he  claims  money  in  the  garnishee's 
hands,  when  the  assignment  was  only  as  security  for  unliqui- 
dated indebtedness  which  the  assignor  might  incur,  there 
should  be  judgment  for  the  inter venor  to  satisfy  his  claim,  and 
judgment  for  the  plaintiff  as  to  the  rest  of  the  money."  The 
assignee  may  have  his  interventional  claim  tried  after  the 
garnishee  has  paid  into  court.''  It  has- been  held  that  if  the 
garnishee  admits  his  indebtedness  to  the  defendant  and  does 
not  disclose  notice  to  himself  of  an  assignment,  the  assignee 
cannot  intervene  to  have  his  claim  decided.^     "When  the  as- 

Hubert  v.  Bronson,  125  id.  475 ;  Wal-  Nugent  v.  Opdyke,  9  Rob.  (La.)  453 ; 

lace  V.  Haywood,  etc.  Co.,  16  Gray,  Bank  of  St.  Mary  v.  Morton,  12  id. 

209;    Lannan  v.   Sraith,   7  id.   150;  409. 

Hartley  v.  Tepley,  2  id.  565 ;  Taylor  3  Kohn  v.  Ryan,  31  Fed.  636,  anno- 

V.  Lynch,  5  id.   49 ;  Emery  v.  Law-  tated;  Fleicher  v.  Greenwald,  20  Fed. 

rence,  8  Cush.  151.  547 ;  Van  Patten  v.  Burr,  52  la.  518 ; 

1  Nickolls  V.  Scofield.  2   R.  I.  123 ;  Adler    v.    Ecker,    1   McCrary,    256 ; 

Clapp  V.  Hancock,  1  Allen,  394 ;  Ful-  2  Fed.    126 ;    Shelby    v.    Bacon,   10 

weiler  v.  Hughes,    17    Pa,   St.   440;  How.  56.     See  Jatfray  v.   McGehee, 

Dunegan  v.  Byers,  17  Ark.  492 ;  Cot-  107  U,  S.  367. 

trell  V.  Varnum,  5  Ala.  229.  ■»  Poole  v.  Carhart,  71  la.  37.     He 

-  Johnson  v.  Dexter,  38  Mich.  695 ;  may  claim  the  whole  or  a  part  of  the 

Tabor  v.  Van  Vranken,  39  id.  793;  fund  as  assignee.     Home  n  Stevens, 

Large  v.  Sloore,  17  la.  258 ;  Walters  79  Me.  262. 

V.  Insurance  Co.,  1  id.  404;  Crozier  SRjpiey  v.  Ayer,  119  111.  341. 

V.  Shants,  43  Vt.  478 ;  Page  v.  Thomp-  6  Whalen  v.  McMahon  (Colo.),  26  P. 

son,  43  N.   H.  373;  Cross  v.  Halde-  583. 

man,  15  Ark.  200 ;  Pitts  r.  Mower,  18  ^  Gates  v.  Trusten,  89  Mo.  13. 

]Me.  361;  Stubblefield  v.  Hagerty,  1  sporter  v.  West,  64  Miss.  548.    See 

Ala.  38;  Colvin  v.  Rich.  3  Port.  175;  Baker's  Estate,  17  Phila.  510. 
Wicks  V.  Branch  Bank,  12  Ala.  594; 


3l)i      LEGAL    CUSTODY    KELATIVE    TO   GARNISHMENT.       [§§  420,  421. 

signee  is  not  a  party,  the  garnishee  cannot  conclude  him  or 
deprive  hiin  of  any  right  by  disclosing  untruly  that  he  is  in- 
debted to  the  defendant,  the  assignor.  And,  if  the  plaintiff 
has  failed  to  appear  in  ancillary  garnishment  proceedings, 
and  has  been  defaulted,^  the  garnishee  cannot  waive  the  de- 
fault and  voluntarily  submit  to  judgment,  to  the  injury  of  the 
assignee.^ 

§  420.  The  garnishment  proceeding,  when  suspended  by 
statutory  provision  that  the  rights  of  assignor  and  assignee 
may  be  adjusted  in  a  suit  between  them,  will  be  determined 
by  such  suit  where  the  garnishee  has  previously  disclosed  that 
the  debt  he  acknowledged  has  been  assigned.^  The  plaintiff 
may  disprove  the  garnishee's  claim  to  own  the  property  he 
holds,  and  may  show  that  it  belongs  to  the  defendant.*  And 
the  garnishee  may,  as  a  matter  of  course,  defend  his  right 
when  endangered,  and  may  secure  his  discharge  by  showing 
good  faith  on  his  part,  though  the  defendant  may  have  de- 
signed to  cover  his  property  rather  than  alienate  it.^ 

§  421.  Ladies  of  assk/nee. —  After  judgment  against  gar- 
nishees, a  creditor  of  the  principal  defendant  petitioned  to  set 
it  aside  on  the  ground  that  the  latter  had  assigned  to  him  be- 
fore the  garnishment,  and  the  garnishees  had  been  notified  of 
the  assignment.  Though  the  petitioner  averred  that  he  had  no 
notice  by  the  garnishees  of  the  proceedings  against  them,  he 
was  deemed  guilty  of  laches  by  taking  no  steps  till  eight 
months  after  he  had  become  cognizant  of  the  facts :  so  his 
prayer  was  refused,^  Ordinary  diligence  and  clear  right  must 
be  shown  when  such  a  judgment  is  sought  to  be  set  aside  after 

1  Wilcox  V.  Clement,  4  Denio,  162 ;  s  Clark  v.  Few,  63  Ala.  243 ;  Born 
McCarty  v.  McPherson,  11  Johns,  u.  Staaden,  24  111.320;  Fisk  u.  Wes- 
406 ;  Shufelt  i'.  Cramer,  20  id.  309 ;     ton,  5  Me.  410. 

Barber  v.  Parker,  11  Wend.  52 ;  Brady  ■»  Covvies  ii  Coe,  21  Ct.  230 ;  Knight 

V.  Tabor,  29  Mich.  199;  Redman  v.  v.  Gorham,  4  Me.   492;    Hooper  v. 

White,  25  id.  526 ;  Stadler  v.  Moors,  Hills,  9  Pick.  435. 

9  id.  264.  5  Hutchins  v.  Sprague,  4  N.  H.  469 ; 

2  Dobbins    v.   Hyde,   37   Mo.    114;  Ripley    v.   Severance,   6    Pick.  474; 
Dickey  v.  Fox,  24  id.  217 ;  Fimkhou-  Thomas  v.  Goodwin,  13  Mass.  140. 
ser  V.  How,  24  id.  49 ;  Gates  v.  Kerby,  ^  Lawrence   Bank  v.  Iron   Co.,  77 
13  id.    157;  Andrews  v.   Herring,  5  Md.  331;  Post  u  Bowen,  35  id.  233. 
Mass.   213;    Johnson    v.   Dexter,   38 

Mich.  695. 


§§  422,  420,]       ILLEGAL    AND    FRAUDULENT    ASSIGNMENT.  305 

the  term  in  which  it  was  rendered.^  It  cannot  be  attacked  in 
the  appellate  court  when  no  exception  was  taken  in  tlie  court 
beh)w.-  It  is  held  that  the  assignment  of  a  fund  does  not 
necessarily  require  that  the  holder  of  the  fund  should  know 
of  the  assignment  to  make  it  valid  against  his  subsequent  gar- 
nishment.^ It  is  necessary,  however,  that  the  garnishee  have 
notice  of  the  assignment  in  time  to  disclose  it  in  his  answer,* 
so  that  the  assignee  may  be  made  a  party.'* 

§  422.  Insolvent  jpartncrsMi)  property. —  It  is  held  that  in- 
solvent partnership  property  must  be  in  custodia  legis  before 
a  creditor's  lien  can  attach  to  it.  It  must  have  been  brought 
into  court  by  the  bankruptcy  of  the  firm,  by  assignment  or 
by  some  other  mode  of  creating  a  trust."  It  is  said  in  the  first 
case  just  cited:  "Creditors  have  no  lien  except  through  the 
partners ,  and  w^hen  the  assets  have  been  disposed  of  by  the 
consent  of  the  partners,  the  equity  of  the  individual  partners 
has  been  extinguished  and  no  lien  remains  to  the  creditors."'' 

lY,    Illegal  and  Fraudulent  Assignment. 

§  423.  The  holder  of  funds  or  property  illegally  assigned 
may  be  garnished  in  a  suit  against  the  assignor.^  If  the 
question  of  legality  turns  upon  the  consideration,  the  plaint- 
iff upon  a  comparatively  slight  showing  may  throw  the  bur- 
den of  proof  upon  the  garnishee  who  is  himself  the  assignee.^ 

If  the  assignment  is  void  the  assignee  in  possession  may  be 

1  Taylor  r.  Sindall,  34  Md.  38 ;  Dor-  119;    Fitzpatrick  y.  Flannegan,  106 

sey  V.  Kyle,  30  id.  512 ;  Kemp  v.  Cook,  id.  648. 

18  id.  130.  ^  Sickman    v.    Abernathy,    supra, 

2Parksu  Adams,  113  N.  C.  473.  citing  Hoxie  v.  Carr,  1   Sum.  173 

sScheuler  v.  Simmons,  3  Tex.  Civ.  Allen  v.  Center  Valley  Co.,  21  Ct.  130 

App.  672.  McDonald  v.  Beach,  2  Blatchf.  55 

*  Abbott  V.  Davidson  (R.  I.),  25  A.  Kistner  v.  Sindlinger,  33  Ind.  114 


839 ;  Lee  v.  Robinson,  15  R.  I.  369 
Tiernay  v.  McGarity,  14  id.  231 
Tracy  v.  McGarty,  12   id.  108,  169 


Harris  v.  Peabody,  73  Me.  262 ;  Glenn 
V.  Gill,  2  Md.  1 ;  Locke  v.  Lewis,  124 
Mass.  1. 


Northam  V.  Cartright,  10  id,  19,  21.  SRisser  v.  Rathburn,  71    la.   113; 

5  Levy  r.  Miller,  38  Minn.  .526 ;  Jor-  Mansard  v.    Dailey,  114  Mass.   408; 
dan  V.  Harmon,  73  Me.  259.  Gutterson  v.  Morse,  58  N.  H.  529. 

6  Sickman  v.  Abernathy,  14  Colo.  sMaherr.  Brown,  2  La.  492;  Gid- 
179 ;  Case  v.   Beauregard,  99  U.   S.  dings  v.  Coleman,  12  N.  H,  153.    See 

Hecht  V.  Green,  61  Cal.  269. 
20 


306       LEGAL    CUSTODl*    RELATIVE    TO    GAR^fISHMENT.       [§§  424,  425. 

garnished.^  If  the  assignor  can  take  it  back  his  creditor  "an 
reach  it.  So  long  as  money  or  property  in  another's  hands 
is  subject  to  the  debtor's  order  it  may  be  reached  by  garnish- 
ment.^ 

If  an  assignment  is  wanting  in  essentials;  if,  for  instance, 
the  bond  has  not  been  approved  by  the  court  commissioner 
and  duly  indorsed  by  him  (where  that  is  required) ;  if  the  as- 
signment, for  this  or  any  other  reason,  is  void,  the  assignee  in 
possession  may  be  garnished  in  a  suit  against  the  assignor.'' 

§  424.  An  assignment  for  the  purpose  of  defrauding  cred- 
itors, selling  property  and  taking  notes  in  the  name  of  a  third 
person,  and  the  like,  will  not  prevent  garnishment  from  prov- 
ing effectual  when  the  disclosure  or  evidence  reveals  the  real 
state  of  things  and  shows  that  the  garnishee  really  owns  or 
holds  property  for  the  attachment  defendant.* 

A  purchaser  who  fraudulently  has  bought  property  may  be 
garnished  by  the  judgment  creditor  of  the  vendor,  notwith-. 
standing  the  pendenc}'"  of  his  execution  against  the  same  prop- 
erty as  that  of  the  judgment  defendant,  according  to  the 
Ke vised  Statutes  of  Wisconsin,  section  2753.^ 

The  proceeds  of  property  fraudulently  conveyed  may  be 
reached  by  garnishing  the  recipient  in  a  suit  against  the  debtor 
who  has  thus  conveyed  to  him.^ 

§  425.  "  Where  the  fraudulent  intent  on  the  grantor's  part 
is  shown,  and  the  circumstances  are  suspicious,  the  purchaser 
must  show  that  he  has  paid  value,  and  upon  the  establishment 
of  that  fact  the  attaching  creditor  must  then  make  it  appear 
that  the  purchase  was  made  in  bad  faith  or  with  notice  of 
fraud." ' 

The  rule  as  to  fraudulent  transfers  is  that  what  is  trans- 

1  Kimball    v.   Evans,    58  Vt.    655.  Kesler  u  St  John,  22  la.  565 ;  Wood 

See  Merchants'  Bank  v.  CoLnnan,  81  v.  Bodwell,  12  Pick.  268. 

Ala.  170.  '"  Sutton  v.  Hasey,  58  Wis.  556. 

-'Field  n  Haines,  28  Fed.  919.  ^Bresnahan  v.   Nugent,   92  Mich. 

3  Baunibach  v.  Singer,  86  Wis.  329 ;  76,  limiting  Feary  v.  Cummings,  41 
Shakman  v.  Schleuter,  77  id.  402.  id.  376. 

4  Price  V.  Bradford,  4  La.  35  ;  Camp  "'  Treusch  v.  Ottenburg,  54  Fed. 
V.  Clark,  14  Vt.  387;  Langley  v.  878;  Callan  v.  Statham,  23  How. 
Barry,  14  N.  H.  82 ;  Green  v.  Doughty,  477-480 ;  Jones  v.  Simpson,  116  U.  S. 
6  id.  572;  Bibb  v.  Smith,  1  Dana,  614;  Crawford  v.  Neal,  144  id,  595; 
580;  Patton  v.  Gates,  67  111.  164;  Klein  u.  Hofflieimer,  132  id.  375-9. 
Diefendorf  v.    Oliver,   8  Kan.    305; 


§§  42(5,  427.]       ILLEGAL    AND    FRAUDULENT    ASSIGNMENT.  307 

ferred  in  fraud  of  creditors  may  be  reached  by  garnishment, 
even  though  the  owner  may  be  estopped  from  reclaiming  it.^ 
But  after  the  direct  attachment  of  goods  fraudulently  sold 
the  vendee  cannot  be  garnished  in  a  suit  against  the  vendor.- 

§  42G.  Fraud  estops  the  garnishee  from  successfully  claim- 
ing. If  he  has  wrongfully  obtained  possession  of  the  defend- 
ant's property  under  a  chattel  mortgage,  and  has  withheld 
the  mortgage  from  record  in  fraud  of  defendant's  creditors, 
he  cannot  be  heard  to  set  up  his  mortgage  lien  to  defeat  the 
garnishment.^  TThen  a  stranger  to  proceedings  by  attach- 
ment is  about  to  be  wronged  by  reason  of  a  previous  fraudu- 
lent action  of  the  defendant,  he  may  be  allowed  to  intervene 
and  show  that  what  the  garnishee  holds  as  the  money  of  the 
defendant  really  belongs  to  himself,  though  the  defendant 
would  be  estopped  from  setting  up  his  own  wrong-doing.^  As 
a  general  rule,  however,  the  attaching  creditor  can  only  reach, 
in  the  hands  of  the  garnishee,  what  the  defendant  might  have 
recovered  had  there  been  no  garnishment.'^ 

§  427.  Assif/nces  commissions. —  If  an  assignee  has  been 
removed  for  not  giving  bond,  or  like  reason,  his  successor 
may  be  garnished  in  a  suit  for  compensation  due  for  services 
before  removal.^ 

1  Van   Ness  v.    McLeod,   2  Idabo,  the  facts    and    defeat  the  garnish- 

1147.  ment. 

-  Claflin  V.  Landecker,  17  Mo.  App.  ^  United  States  r.  Robertson,  5  Pet. 

615;    Goddard   v.   Hapgood,    25  Vt.  641;  Wilcox   v.  Mills,  4  Mass.  218 

361 ;  State  v.  Johnson,  33  N.  H.  363 ;  Harris  r.  Phoenix  Ins.  Co.,  35  Ct.  310 

Olapp  V.  Rogers,  38  id.  435.  Brown  v.  Silsby,  10  N.   H.  521 ;  St. 

3  Cummings  V.  Fearey,  44  Mich.  39,  Louis  v.  Regenfuss,  28  Wis.  144; 
upon  a  statute  requiring  that  chat-  Myer  v.  Liverpool,  etc.  Ins.  Co.,  40 
tel  mortgages  be  recorded ;  United  Md.  595 ;  Burton  ■?'.  District  Town- 
States  V.  Vaughan,  3  Binney,  394;  ship,  11  la.  166;  Tnpper  r.  Cassell,  45 
Lambr.  Stone,  11  Pick.  527.  Miss.  352;  Peet  v.  Whitmore,  16  La. 

^Turner  f.  Burnell,  48  Wis.  221.  in  Ann.  48:    Coble  r.   Nonemaker,   78 

which  the  defendant,  an  agent  of  the  Pa.  St.  501 ;  Woodhouse  v.  Coiumon- 

intervenor,  had  caused  liiniself  to  be  wealth  Ins.  Co.,  54  id.  307. 

credited  in  an  estate  account  instead  •>  Stuckey    t\   McKibbon,   92    Ala. 

of  his  principal.    When  the  adniinis-  622 ;  New  York  Ins.  Co.  v.  Roulet,  24 

trators  of  the  estate  were  garnished  Wend.  505 ;  McCrea  i\  Purmont,  16 

as  the  debtors  of  the  agent,  the  prin-  id.  460;   Fitch  v.  Workman,  9  Met 

cipal  was  allowed  to  intervene,  prove  517. 


CHAPTER  XII. 

CORPORATIONS  AS  GARNISHEES. 

L  States        §§  428-433 

IL  Counties,  etc 433-438 

III.  Cities 439-443 

IV.  Private  Corporations  in  General 444 

V.  Banks 445-446 

VI.  Insurance  Companies 447-448 

VIL  Common  Carriers 449-454 

VIII.  Corporation  Servants      .     .     .     . '  ,  455-456 

IX.  Corporation  Stock       , 457-458 

X  Corporation  in  Foreign  State 459-463 

XI.  Situs  of  Shares 464-468 

I.  States. 

§428.  TJie  rule. —  A  state  cannot  be  sued  by  process  of 
garnishment  without  its  own  consent,  for  the  same  reason 
that  it  cannot  be  sued  by  ordinary  process ;  nor  can  it  be  in- 
directly garnished  by  making  one  of  its  officers  the  nominal 
garnishee.  Funds  in  the  hands  of  a  state  treasurer,  auditor, 
comptroller,  agent  or  disbursing  officer,  belonging  to  the  state, 
cannot  be  reached  by  this  process  directed  against  any  such 
officer.  And  the  rule  embraces  the  United  States  and  the 
District  of  Columbia,  and  their  officers  and  agents.^ 


1  Dewey  v.  Garvey,  180  Mass.  86 
Rodman  v.  Musselman,  12  Bush,  354 
Buchauan  v.  Alexander,  4  How.  20 
Derr  v.   Lubey,   1   MacArthur,  187 
Pettier  &  Stynius  Manufac.    Co.  v. 
Taylor,  3  id.  4 ;  Brown  v.  Finley,  id 
77 ;  Averill  v.  Tucker,  2  Ci-.  C.  C.  514 
O'Neill  V.  Sewell,  85  Ga.  481  (trustees 
of    state    asylum   garnishees);    Mc- 
Meekin  v.  State,  9  Ark.  553 ;  Dobbins 
V.  Railroad,  37  Ga.  240 ;  Bank  of  Ten- 
nessee V.  Dibrell  (State  ComiJtroller, 
Garnishee),  3  Sneed,  379 ;  Pennebaker 
V.  Tomlmson  (State  Comptroller,  Gar- 


nishee), 1  Tenn.  Ch.  Ill ;  Rollou.  An- 
des Ins.  Co.  (State  Treasurer,  Garni- 
shee), 23  Gratt.  509 ;  Divine  v.  Harvie, 
7  Mon.  439 ;  Wild  v.  Ferguson,  23  La. 
Ann.  752  (the  garnishees  in  the  lat- 
ter two  cases  being  state  officers); 
Wilson  u  Bank  of  La.,  55  Ga.  98.  In 
the  case  of  Buchauan  v.  Alexander, 
boarding-house  keepers  had  sued 
seamen-and  garnished  the  purser  of 
the  frigate  Constitution,  upon  which 
the  sailors  had  a  lien  for  wages ;  but 
the  United  States  supreme  court 
held  that  the  funds  in  the  hands  of 


§§  429,  430.]  STATES.  309 

§  420.  Though  public  funds  may  have  been  appropriated 
and  placed  in  the  hands  of  an  officer  to  be  paid  to  those  who 
are  creditors  of  the  government,  they  belong  to  the  govern- 
ment and  not  to  the  creditors  up  to  the  moment  when  the 
officer  pays  them  over  to  the  latter;  and  therefore  they  can- 
not be  attached  in  the  hands  of  the  officer  as  the  mone}^  of 
the  creditors  in  his  possession.  Even  if  states  or  the  federal 
government  were  liable  to  be  garnished  for  what  property 
they  hold  belonging  to  an  attachment  defendant,  it  would  not 
follow  that  their  own  money,  though  placed  in  the  hands  of 
an  officer  for  payment,  could  be  subjected  to  garnishment  as 
tlie  money  of  the  defendant  to  whom  such  funds  are  to  be 
paid.  However,  were  such  governments  garnishablC;  debts 
due  a  defendant  might  be  reached  by  the  process;  for,  in  such 
case,  it  is  not  essential  that  the  money  necessary  to  pay  debt 
should  already  belong  to  the  defendant. 

§  430.  The  reason. —  The  reason  why  they  cannot  be  gar- 
nished for  debt  is  the  broad  one  that  a  state  cannot  be  sued ; 
and  that  reason  is  based  upon  public  policy,  whether  the  policy 
be  intrinsically  wise  or  unwise.  And  the  reason  extends  to 
the  garnishment  of  officers. 

The  reason  has  been  extended  in  the  majority  of  the  states 
to  public  corporations  of  a  subordinate  character:  such  as 
counties,  townships,  city  corporations  and  school  districts. 
However,  where  the  opposite  theory  prevails,  and  also  where 
the  question  is  an  open  one,  as  in  new  states  when  counties, 
cities,  school  districts,  etc.,  are  first  formed,  there  may  be 
strong  argument  drawn  from  policy  in  favor  of  the  garnish- 
ment of  such  corporations.  The  acknowledged  duty  of  every 
debtor  to  pay  his  debts;   the  obligation  upon  government 

that  officer  could  not  be  thus  reached,  officer,  it  is  as  much  the  money  of 

though    he  had   admitted   tliat   the  the  United   States  as  if  it  liad  not 

wages  were  due.     "The  funds'of  the  been  drawn  from  the  treasury.   .    .    . 

government,"   said  the  court,  "  are  We  think  the  question  in  this  case  is 

specifically  appropriated  to  certain  clear  of  doubt,  and  requires  no  fur- 

uational  objects,  and  if  such  appro-  ther  illustration."    Train  v.  Herrick, 

piiations  may  be  diverted  and  de-  4  Gray,  534 ;  Smith  v.  State,  etc.,  13 

feated  by  state  process  or  otherwise,  S.  &  M.   140 ;  Sampson  v.  Bryce,  5 

the  functions  of  the  government  may  Munf.  175 ;    Randolph  v.  Randolph, 

be  suspended.     So  long  as  money  re-  G  Rand.  194. 
mains  in  the  hands  of  a  disbursing 


310  CORPORATIONS  AS  garnishp;es.  [§  4:31» 

to  facilitate  the  performance  of  such  clut}';  the  injustice  of 
allowing  a  debtor  to  defeat  a  creditor  b}^  putting  funds  or 
property  into  the  hands  of  a  pubhc  corporation  to  keep  them 
out  of  the  reach  of  the  courts;  the  almost  equal  injustice  of 
permitting  such  corporation  to  hold  a  debtor's  money  or 
property  from  the  operation  of  a  court's  writ,  though  not  put 
designedly  in  such  position  to  defeat  the  creditor,  ought  ta 
have  weight  in  considering  the  question  of  policy. 

§  431.  The  arguments  generally  employed,  that  such  corpo- 
rations and  their  officers  might  be  hindered  in  the  discharge 
of  their  public  duties  if  liable  to  be  called  into  the  quarrels  of 
litigants  to  answer  what  property  or  funds  they  hold  belong- 
ing to  an  attachment  defendant,  and  that  they  cannot  always 
know  what  is  due  such  defendant  until  accounts  have  been 
adjusted,  may  be  met  by  the  answer  that  when  it  is  apparent 
that  a  stated  sum  is  due  him,  or  that  a  distinct  article  of 
property  belongs  to  him,  it  is  very  easy  for  a  public  corpora- 
tion, or  its  proper  officer,  to  say  so  —  as  easy  as  it  is  for  a 
priv^ate  corporation,  or  its  proper  officer,  to  say  so  under  sim- 
ilar circumstances  —  (not  only  eas}^,  but  a  duty  when  the  law 
requires  it,  and  therefore  no  hindrance  of  official  dut}');  and, 
in  answer  to  the  other  objection  —  that  they  cannot  always, 
know  what  is  due  the  defendant  till  his  accounts  have  been 
settled  —  it  seems  sufficient  to  say  that  a  response  to  an  in- 
terrogatory to  that  effect  would  work  the  discharge  of  the 
garnishee.  The  rule  is  that  an  answer  by  a  private  person 
that  his  accounts  with  the  defendant  are  unliquidated,  and 
that  he  does  not  know  whether  he  is  indebted  or  not,  would 
result  in  his  discharge  unless  refuted  under  traverse.  If  it 
be  said  that  public  corporations  and  their  disbursing  officers 
ought  not  to  be  subjected  to  the  litigation  consequent  upon  a 
traverse  of  their  answers,  the  ready  reply  is  that  the  argu- 
ment favors  statutory  exemption  from  traverse  rather  than 
from  garnishment.  There  are  good  reasons  for  a  provision 
prohibiting  further  procedure  against  a  public  corporation^ 
cited  as  garnishee  in  an  attachment  suit,  after  such  an  answer 
as  above  suggested;  for,  if  every  creditor  should  have  it  in 
his  power  to  derange  the  ordinary  official  routine  of  business 
by  making  accounting  officers  liquidate  accounts  out  of  due 
time,  much  confusion  and  public  injury  might  result.     AVith 


§1 432,  433.]  COUNTIES,  etc.  311 

such  a  provision,  almost  every  objection  to  the  garnishment  of 
subordinate  pubhc  corporations  would  be  swept  away.  The 
public  interests  would  be  subserved  by  the  extension  of  the 
creditor's  means  of  collecting  his  just  dues  and  the  cause  of 
justice  would  be  promoted. 

§  432.  "Where  subordinate  public  corporations  may  sue  and 
be  sued  in  direct  actions,  the  argument  drawn  from  inviolabil- 
ity of  the  state  does  not  appl}'-  to  them ;  and,  considering  gar- 
nishment as  a  suit,  they  ought  not  to  be  exempt  from  it  on  this 
ground.  Besides,  state  inviolability  is  not  so  indisputably 
commendable  that  it  should  be  extended  to  minor  ors^aniza- 
tions  which  perform  some  of  the  functions  of  government. 
The  United  States  government  suffers  itself  to  be  sued  upon 
contracts  express  or  implied  in  the  court  of  claims.  If  all 
governments  would  allow  the  courts  to  settle  claims  preferred 
against  them,  is  it  likely  that  less  justice  would  be  done  than 
now,  when  such  judicial  functions  are  confined  to  executive 
officers  who  act  and  think  through  their  clerks? 

II.  Counties,  etc. 

§  433.  Not  generally  Uahle. —  Under  the  policy  followed  by 
most  of  the  states,  neither  counties  nor  their  officers  are 
chargeable  by  garnishment  upon  general  principles;  they 
may  be  rendered  amenable  by  statute  but  are  not  other- 
wise liable.  If  the  county  officer  could  be  cited  into  court  to 
answer  as  to  what  public  funds  he  holds  in  a  suit  between 
private  litigants,  he  might  be  hindered  in  the  settlement  of 
his  accounts  with  the  county  to  the  injury  of  the  public  inter- 
ests. For  this  reason,  as  well  as  for  one  founded  upon  a 
statute,  it  was  held  that  a  county  treasurer  was  not  charge- 
able as  garnishee  or  trustee,  though  he  had  answered  to  an 
interrogatory  that  he  had  in  his  official  capacity  a  stated  sum 
of  money  due  to  the  defendant  for  services  as  a  juror  which 
he  was  legally  obliged  to  pay  to  the  defendant.^  A  county 
officer's  authority  and  duty  are  governed  by  law,  and  he  can- 
not be  made  to  divero^e  from  his  rio'htful  official  course  of 
action  by  court  orders  at  the  instigation  of  litigants  in  the 

1  Chealy  v.  Brewer  (Seaver,  Trustee),  7  Mass.  259 ;  Williams  v.  Boardman, 
9  Allen,  570. 


312  CORPORATIONS    AS   GARNISHEES.  [§§  434,  435. 

absence  of  statutoiy  authorization,  and  to  the  detriment  of 
the  public  welfare,  any  more  than  a  state  officer  could  thus 
be  turned  from  the  line  of  his  public  duty.^ 

§434.  Illustration. —  A  county  is  deemed  a  municipal  cor- 
poration and  its  officers  held  exempt  from  garnishment  on 
account  of  public  property  or  money  in  their  hands.  Even  if 
the  county  were  garnishable,  it  is  held  that  the  process  would 
not  reach  an  undelivered  county  order  in  favor  of  the  debtor, 
while  yet  in  the  hands  of  the  county  clerk;  and  that  the  de- 
livery of  the  order  to  the  sheriff,  upon  service  of  the  process 
upon  the  clerk,  does  not  bind  the  county  or  subject  it  to  the 
garnishment.^  The  clerk,  being  the  agent  of  the  board  of  su- 
pervisors, holding  for  it,  has  no  custody  independent  of  the 
board;  and  the  garnishment  is  virtually  against  the  county, 
which,  as  a  municipal  corporation,  cannot  be  thus  reached.^ 
A  county  cannot  be  directly  sued,*  as  a  general  rule;  but  when 
it  may  be  sued,  and  judgment  obtained  against  it,  its  debtor 
may  be  garnished  in  execution.^ 

§  435.  When  licible. —  A  county  corporation  is  liable  to  have 
the  usual  legal  remedies  applied  to  it,  if  the  law  imposes  upon 
it  such  duties  and  grants  such  privileges  as  require  such  rem- 

1  Ward  V.  County  of  Hartford,  12  terer  v.  Bowe,  84  Ga.  769.     Compare. 

Ct.  404 ;  Bray  v.  Wallingford,  20  id.  Waterbury  v.  Board  of  Comm'rs,  10 

416;  McDougal  v.   Hennepin  Co.,  4  Mont.  515. 

Minn.  184 ;  Bulkley  v.   Eckert,  3  Pa.  -  Merrill     v.     Campbell     (County 

St.  368 ;  Boone  Co.  v.  Keck,  31  Ark.  Clerk),  49  Wis.  535.    County  clerk  not 

387 ;  Webb  v.  McCauley,  4  Bush,  8 ;  garnishable  for  redemption   money 

Ross  V.  Clarke,  1  Dall.  354 ;  Spalding  after  tax  sales :  Smith  v.  Finlen,  23 

V.   Imlay,   1   Root,   551 ;   Stanton  v.  111.  App.  156 ;  Lightner  v.  Steinagel, 

Holmes,   4   Day,   87,   96;  Benton  u  33  111.510. 

Dutcher,  3  id.  346 ;  Winchell  v.  Allen,  ^  Id. ;  Burnham  v.  Fond  du  Lac,  15 

1  Ct.  385;  Stillman  v.  Isham,  11  id.  Wis.  193:  Buffham  v.  Racine,  26  id. 

124 ;  Wallace  v.  Lawyer,  54  Ind.  501 ;  449 ;  Hill  v.  La  Crosse  &  Mil.  R.  R. 

Merwin  v.  Chicago,  45  111.  133 ;  City  Co.,  14  id.  291. 

of  Chicago  v.  Hastings,  25  id.  395 ;  *  Sheldon  v.   Litchfield   County,  1 

Fast  V.  Wolf,  38  111.  App.  27 ;  Com-  Root,  158 ;  Lyon  v.  Fairfield  County, 

missioners    v.    Bond,    3    Colo.    411;  2  id.  30 ;  Staphouse  u  Coimty  of  New 

Sauer  v.  Nevadaville,  14  id.  54;  State  Haven,  1  id.  126;  Hawley  v.  County 

V.   Eberly,    12   Neb.   616;    Riggin  v.  of  Litchfield,  id.  155 ;  Russell  r.  Men 

Hilliard,  56  Ark.  476;  Dounelson  v.  of  Devon,  3  Term  Rep.  667. 

Colerain,  4  Met.  430 ;  City  of  New  ^  George  v.  Ralls  Co.,  3  McCrary  C. 

Orleans  v.  Finnerty,  27  La.  Ann.  681 ;  C.  181. 
Lewis  V.  Dubose,  29  Ala.  219;  Dot- 


§§  43 G,  437.]  COUNTIES,  etc.  313 

edies  on  the  part  of  others  in  the  enforcement  of  their  rights. 
It  is  a  proper  inference  that  a  statute  confers  such  remedies 
when  it  provides  that  such  a  corporation  may  sue  and  be 
sued,  though  none  of  the  conservative  writs  or  any  particular 
form  of  remedy  may  be  expressed.^  A  county  is  usually  more 
analogous  to  the  state  government  than  to  public  bodies  cre- 
ated by  statute  for  designated  purposes.  A  statute  authoriz- 
ing a  county  to  make  an  appearance  when  sued  was  construed 
not  to  imply  that  the  county  might  be  sued.^ 

§436.  Debt  iijwn  contract. —  It  would  seem  that  when  a 
public  corporation  makes  a  contract  it  ought  to  be  liable  to 
suit  or  garnishment  precisely  as  a  natural  person.  In  Massa- 
chusetts a  county  may  be  garnished  for  a  sum  due  by  con- 
tract. Although  a  juror's  fees  cannot  be  attached  in  the 
hands  of  the  county  by  such  process  in  that  state,^  the  su- 
preme court  say  that,  in  cases  of  contract,  "  there  has  never 
been  a  doubt  that  cities  and  towns  are  liable  to  be  summoned 
as  trustees;  and  we  find  nothing  in  the  statutes  upon  this 
subject  that  places  counties  upon  a  different  footing  in  this 
respect  from  cities  and  towns."  * 

§  437.  Toivnshqys. —  What  has  been  said  about  the  non-lia- 
bility of  a  county  and  its  officers  is  almost  as  broadly  appli- 
cable to  a  township.^  Where  the  rule  of  non-liability  prevails, 
whether  by  statute  or  by  settled  practice  based  upon  tlie 
principles  above  mentioned  with  respect  to  counties,  and  ap- 
plicable alike  to  cities,  it  is  not  confined  to  such  cases  as  would 
embarrass  officers  in  the  discharge  of  their  duty,  but  is  ex- 
tended to  all  cases.  The  question,  when  such  garnishment  is 
attempted,  is  not  whether  the  process  interferes  with  the  po- 
litical, civil  or  corporate  duties  of  the  officer,  but  whether  the 
statute,  or  the  policy  of  the  law,  allows  the  garnishment  of 

'  Ward  V.  County  of  Hartford,  12  distinction    may    be    extended    to 

Ct.   404,  407 ;    McLoud  r.   Selby,  10  Chealy  v.  Brewer,  7  Mass.  259. 

id.  390 ;  Tilden  r.  Metcalf,  2  Day,  209.  5jenks    r.  Osceola  Township.    4.j 

-  Ward  V.  County  of  Hartford,  12  la.  554 ;  Spencer  v.  School   District 

Ct.  408.  (No.    17),    11   R    I.    537;  Bradley  v. 

•*They  can  be  in  New  Hampshire:  Town  of  Richmond,  6  Vt.  121.     Con- 

Wardwell  v.  Jones,  58  N.  H.  305.  tra:  Hibbard  v.  Clark,  56  N.  H.  155, 

*  Adams  v.  Tyler,  121  Mass.   380 :  157.    See  Walker  v.  Cook,  129  Mass. 

the  case  of  Williams  v.  Boardman,  9  577. 
Allen,  570,  distinguished.     And  the 


'd\4: 


COKPORATIONS    AS    GARNISHEES. 


[§  438. 


such  a  corporationat  all.^  A  corporation  may  waive  objection 
to  garnishment,  even  where  there  is  no  express  statute  au- 
thorization for  the  process  against  such  a  body.'^  Waiver^ 
however,  ought  not  be  permitted  without  the  consent  of  the 
attachment  debtor.* 

Distinction  has  been  drawn,  however,  between  a  pubhc 
officer  of  such  a  corporation  and  a  mere  agent  appointed  by 
a  town  to  distribute  money  among  its  inhabitants;  and  while 
the  former  are  not  chargeable  under  trustee  process,  the  latter 
was  held  to  be  so  when  the  corporation  itself  was  liable.^  But, 
if  the  corporation  is  exempt,  its  agent  cannot  be  garnished 
though  he  be  a  private  citizen.^ 

§  438.  Scliool  districts. —  The  rule  that  public  corporations, 
deriving  their  authority  from  the  law  for  the  receiving  and 
disbursing  of  public  funds  are  not  chargeable  as  garnishees, 
is  applicable  to  school  districts,  their  commissioners,  treasur- 
ers and  other  officers.*^  School  districts  are  considered  as  mu- 
nicipal corporations^  and  thus  brought  under  the  rule  of  non- 
liability.^    They  are  public  corporations.'^     Their  officers  are 


1  Jenks  V.  Osceola  Township,  45  la. 
555. 

2  Clapp  V.  Walker  &  Davis,  25  la. 
315;  Las  Animas  Co.  Commission- 
ers V.  Bond,  3  Col.  411. 

3  School  District  v.  Gage,  39  Mich. 
484 ;  Johnson  v.  Dexter,  38  id.  695. 

4  Wendell  v.  Pierce  &  Trustees,  13 
N.  H.  503. 

5  Merrell  v.  Campbell,  49  Wis.  535. 

6  School  District  v.  Gage,  39  Mich. 
484 ;  Spencer  v.  School  District  No. 
17,  11  R.  I.  537;  Bivens  v.  Harper,  59 
111.21;  Millison  u  Fisk,  43  id.  112; 
Clark  V.  Mobile  School  Commission- 
ers, 36  Ala.  621 ;  Tracy  v.  Hornbuckle, 
8  Bush,  336 ;  Bulkly  v.  Eckert,  3  Pa. 
St.  368;  Fourth  School  District  in 
Rumford  v.  Wood,  13  Mass.  193-8-9 ; 
Thayer  v.  Tyler,  5  xYllen,  95 ;  Colby 
V.  Coates,  6  Cush.  559 ;  Hightovver  v. 
Slaton,  54  Ga.  108;  McLellan  v. 
Young,  id.  399,  and  21  Am.  Rep.  276 ; 
Hadley  v.  Peabody,  13  Gray,  200 :  the 
last  three  cases  cited  being  to  the  ef- 
fect that  a  teacher's  salary  cannot  be 


the  subject  of  garnishment.  Ross  v. 
Allen,  IQ  N.  H.  96,  supports  the  same 
proposition.  See  Johnson  v.  Pace,  78 
111.  143.  Contra,  Whalen  v.  Harrison 
(Mont),  27  P.  384;  Waterbury  v. 
Commissioners,  10  Mont.  515.  See 
Seymour  v.  School  District,  53  Ct. 
502,  as  to  garnishment  to  reach  a 
teacher's  salary. 

''School  District,  etc.  v.  Gage,  39 
Mich.  484;  Seely  v.  Board  of  Educa- 
tion, id.  486 :  both  upon  construction 
of  statute. 

8Id. ;  State  v.  Tiedeman,  69  Mo. 
307 ;  Heller  v.  Stremmel,  52  id.  309 ; 
Pendleton  v.  Perkins,  49  id.  535; 
Dodd  V.  Levy,  10  Mo.  App.  121,  dis- 
cussing Luthy  V.  Woods,  1  id.  167; 
Hightower  v.  Slaton,  54  Ga.  108; 
Born  V.  Williams,  81  id.  797;  School 
District  v.  Gage,  39  Mich.  484. 

9  Trustees  of  Schools  v.  Tatman,  13 
111.  27  ;  Taylor  r.  Kuipe,  2  Pearson,  151. 
They  are  sometimes  called  qiiasi-cor- 
porations.  See  Skelly  v.  Westminster 
School  District  (Cal.),  37  P.  643. 


§^  43i),  440.]  CITIES.  315 

to  be  treated  as  public  officers,  and  the  money  in  the  hands 
of  such  officers  to  be  deemed  in  custodia  legis  and  therefore 
not  subject  to  garnishment.^ 

III.  Cities. 

§  439.  Heasons  for  non-li(ibUWj. —  Though  there  is  not  uni- 
formity in  the  practice,  in  the  several  states,  with  respect  to 
the  garnishment  of  incorporated  cities  and  towns  and  their 
officers,  yet  the  same  reasoning  may  be  urged  against  their 
garnishment  as  against  counties  and  other  public  corporations. 
City  governments  control  large  populations  and  exercise  verv 
important  functions.  Persons  subject  to  municipal  authority 
feel  its  operation  as  sensibly  as  they  do  that  of  the  state  or 
federal  government.  As  tax-collecting  and  tax-distributing 
powers,  cities  bear  upon  the  interests  of  all  their  citizens.^ 
They  exercise  to  a  great  degree  the  authority  of  the  state  it- 
self, under  its  surveillance.  Almost  everv  argument  ag-ainst 
the  policy  of  a  state  allowing  itself  to  be  summoned  directly, 
or  indirectly  through  its  officers,  to  appear  in  the  litigation 
of  others  in  which  it  has  no  interest,  will  ajiply  to  the  case  of 
a  municipal  corporation. 

^  440.  It  is  true  a  state  offers  some  reasons  for  not  being 
directly  sued  without  its  consent  which  a  city  cannot  urge; 
bat  the  reason  against  being  garnished  which  is  usually  ad- 
vanced, that  it  would  hinder  officers  in  the  discharge  of  their 
duties  and  work  to  the  injury  of  the  public  interest,  is  equally 
applicable  to  cities  and  their  servants.  That  creditors  should 
be  allowed  the  facility  which  garnishment  gives  for  the  collec- 
tion of  their  dues  is  less  important  than  that  public  duties  be 
perfectly  performed.  Officers  might  be  harassed  daily  and 
drawn  from  their  posts  of  duty  to  the  courts,  to  appear  in 
suits  against  the  many  employees  which  a  city  must  owe  from 
time  to  time,  if  they  were  chargeable  as  garnishees  for  public 
funds  in  their  hands.  A  city  is  a  public  corporation,  existing 
for  the  public  good.     Upon  these  and  other  considerations  it 

'  Millison  v.  Fisk,  43  111.  112,  re-  nishment:  Edgerton  r.  Third  Muui- 

aftirmed  in  Bivens  et  ah.  School  Di-  cipality  of  New  Orleans,  1  La.  Ann. 

rectors,  V.  Harper,  59  id.  21.  435 ;  ^loore  u.  Chattanooga,  8  Heisk. 

-  Taxes  cannot  be  reached  by  gar-  850. 


!16 


CORPORATIONS    AS    GARNISHEES. 


[§  441. 


has  been  held  that  a  city  is  not  amenable  to  garnishment  in 
the  absence  of  statutory  provision  creating  liability.^  And 
for  the  same  reasons  it  is  held  that  money  in  the  official  pos- 
session of  a  municipal  officer  is  not  reached  by  garnishing 
him.^  Ijut  if  a  city  suffers  itself  or  its  officers  to  be  garnished, 
the  attachment  defendant  cannot  complain  of  it  and  plead 
the  exemption  of  the  city  from  the  process.^ 

§  441.  A  creditor  of  a  city  officer,  in  an  attachment  suit 
against  such  officer,  cannot  make  the  comptroller  of  the  mu 
nicipal  corporation  a  garnishee.^  The  funds  the  comptroller 
holds  are  the  city's  till  paid  over,  and  not  held  by  him  in  the 
capacity  of  a  debtor  or  agent  of  the  man  to  whom  they  are 
due.  The  general  rule  is  that  salaries  of  municipal  officers 
are  not  garnishable,  and  it  has  been  extended  to  the  wages 


1  Hawthorn  v.  St.  Louis,  11  Mo.  60; 
Sheppard  v.  County  (Mo.l,  18  S.  W. 
305 ;  Merrell  v.  Campbell,  49  Wis.  535 
(in  a  case  against  a  county) ;  People 
V.  Mayor,  etc.,  2  Neb.  1G6 ;  IMerwin  v. 
City  of  Chicago,  45  111.  133;  City  of 
Chicago  V.  Halsey,  25  id.  o96 ;  Jenks 
V.  Osceola  Township,  45  la.  554; 
Fortune  v.  St.  Louis,  23  Mo.  239; 
Hebel  v.  Amazon  Ins.  Co.,  33  Mich. 
407;  Hawthorne  o.  St.  Louis,  11  Mo. 
59  (see  Pendleton  v.  St.  Louis,  49  id. 
565) ;  Edgerton  v.  Third  Municipality 
of  New  Orleans,  1  La.  Ann.  435; 
Wallace  v.  Lawyer,  54  Ind.  501 ;  Par- 
sons V.  McGavock,  2  Tenn.  Ch.  581 ; 
Moore  v.  Mayor  of  Chattanooga,  8 
Heisk.  850 ;  Memphis  v.  Laski,  9  id. 
511;  Bank  v.  Dibrell,  3  Sneed,  382; 
Baltimore  v.  Root,  8  Md.  95;  Mc- 
Dougall  V.  Board,  etc.,  4  Minn.  184 ; 
Callaghan  v.  Pocasset  Manufac.  Co., 
119  Mass.  173;  Todd  v.  Birdsall,  1 
Cow.  260 ;  Burnliam  v.  Fond  du  Lac, 
15  Wis.  193.  reaffirmed  in  Bufifham  v. 
Racine,  26  id.  449 ;  Columbus  v.  Dun- 
nick,  40  Ohio  St.  602;  Droz  v.  E. 
Baton  Rouge,  36  La.  Ann.  340 ;  First 
N.  Bank  v.  Ottawa,  43  Kan.  294; 
Switzer  v.  Wellington,  40  id.  250; 
Roeller  v.  Ames,  33  Minn.  132 ;  Wil- 


son V.  Lewis,  10  R.  I.  285 ;,  Adams  v. 
Barrett,  2  N.  H.  375;  Beckwith  v. 
Baxter  and  Trustee,  8  id.  67;  Brad- 
ley V.  Richmond,  6  Vt.  121 ;  Divine 
V.  Harvie,  7  T.  B.  Mon.  440 ;  City  of 
Erie  v.  Knapp,  29  Pa.  St.  173 ;  Greer 
V.  Rowley,  1  Pittsburgh,  1 ;  McClellaa 
V.  Young,  54  Ga.  399 ;  Maryland  r 
Bait.  &  O.  R.  R.,  12  Gill  &  J.  399 
Mobile  V.  Rowland,  26  Ala.  498 
President  of  Union  Turnpike  Co.  v. 
Jenkins,  2  Mass.  37;  Pittstown  v. 
Plattsburgh,  18  Johns.  407,  418 
Smith  V.  Woolsey,  22  111.  App.  185. 
-  Wallace  v.  Lawyer,  54  Ind.  501 ; 
Triebel  v.  Colburn,  64  111.  376 ;  Had- 
ley  V.  Peabody,  13  Gray,  200 ;  Ward 
V.  County  of  Hartford,  12  Ct.  404; 
Erie  v.  Knapp,  29  Pa.  St.  173 ;  Moore 
V.  Mayor  of  Chattanooga,  8  Heisk. 
850;  Memphis  v.  Laski,  9  id.  511; 
Edmundson  v  De  Kalb  Co.,  51  Ala. 
103.  See  Rodman  v.  Musselman,  12 
Bush,  354 :  Lightner  v.  Steinagel,  33 
III.  510 ;  Millisou  v.  Fisk,  43  id.  113 ; 
Smith  V.  Woolsey,  22  111.  App.  185. 

3  Wales  V.  Muscatine,  4  la.  302. 
See  Mobile  Street  R.  Co.  v.  Turner,  91 
Ala.  213. 

4  Waldman  v.  O'Donnell,  57  How, 
Pr.  215. 


§  442.]  CITIES.  317 

of  emplo3^ees;'  and  where  this  prevails,  a  city,  though  it  may 
be  there  generally  garnishable,  would  not  be,  in  a  suit  for  such 
dues. 

When  summoned,  a  city  held  money  of  the  defendant  under 
special  agreement  that  it  should  be  applied  to  the  payment 
of  his  taxes.  Under  such  circumstances  the  money  was  not 
liable  to  garnishment.  But  when  the  city  answered,  the 
money,  still  in  the  city  garnishee's  hands,  was  no  longer  held 
for  the  taxes — they  having  been  paid  meanwhile.  On  the 
principle  that  the  validity  of  a  garnishment  must  be  deter- 
mined by  the  state  of  things  existing  at  the  time  of  the  sum- 
mons,- the  city  was  held  not  liable. 

§442.  LiaMUty. —  It  is  not  everywhere  settled,  however, 
that  municipal  corporations,  directly  or  through  their  officers, 
are  free  from  liability  to  garnishment.  Courts,  in  enforcing 
positive  statutes,  construing  doubtful  ones,  and  sometimes  in 
applying  general  principles,  have  held  such  bodies  and  their 
representatives  chargeable  as  garnishees.^  Under  a  statute 
Avhich  subjected  "  any  person,  body  politic  or  corporate  "  to 
process  for  the  recovery  of  salaries  of  its  officers,  at  the  suit 
of  creditors,  it  was  held  that  cities  are  included,'*  but  the  gen- 
eral rule  is  that  public  corporations  are  not  garnishable,  though 
the  statute  should  expressly  authorize  the  process  against 
"all  persons  and  corporations.'^  The  opinion  prevails  that 
municipal  corporations  must  be  expressly  mentioned  if  they 

1  Keyser  v.  Rice,  47  Md.  203.  Bray   v.   Wallingford,    20    Ct.   416 ; 

2  O'Brien  v.  Collins,  124  Mass.  98.  Wales  v.  City  of  Muscatine,  4  la. 
On  the  other  hand,  a  tax-payer  can-  302 ;  Speed  v.  Brown,  10  B.  Mon. 
not  be  garnished  by  the  creditor  108;  Pendleton  v.  Perkins,  49  Mo. 
of  a  municipal  corporation  for  the  56o ;  Wilson  v.  Lewis,  10  R.  I.  285 ; 
amount  of  his  taxes.  This  was  held  Rodman  v.  Musselman,  12  Bush,  354. 
to  be  the  rule,  even  when  the  tax-  See  Heibner  v.  Chave,  5  Barr,  15 ; 
payer  had  given  his  note  and  the  Neuer  v..  O'Fallon,  18  id.  277.  In 
city  had  obtained  judgment  thereon.  Massachusetts  "  there  has  never  been 
Uuderhill  v.  Calhoun,  63  Ala.  216.  a  doubt  that  cities  and  towns  are 
But  see  Smoot  v.  Hart,  33  id.  69.  chargeable  as  trustees  "  in   cases  of 

•*  I\Iayor,  etc.  v.  Horton,  38  N.  J.  L.  contract.  Adams  v.  Tyler,  121  Mass. 
88 ;  Whidden  v.  Drake,  5  N.  H.  13 ;  380.  City  of  second  class  not  gar- 
City  of  Denver  v.  Brown,  11  Colo,  uishable  in  Kansas.  Switzer  ?'.  Well- 
337;  Laredo  v.  Nalle,  65  Tex.  359;  iugton,  40  Kan.  250.  Sefi  Doll  man  r. 
Newark  v.  Funk,  15  Ohio  St.  462;  Moore,  70  Miss.  267. 
Saner  v.  Nevadaville,  14  Colo. ,  54 ;  •*  City  of  Newark  v.  Funk,  15  Ohio 
Brown  v.  Collins  (R  L),  27  A.  329 ;  St  462. 


318  COEPOEATIONS    AS    GARNISHEES.  [§§  443,  444. 

are  to  be  made  garnishable  by  statute.  But  it  is  held  that  a 
city  may  waive  its  privilege.^ 

§  443.  Statute  authorhation. —  In  the  interpretation  of  stat- 
utes authorizing  the  garnisliment  of  perso7is  without  naming 
corporations,  it  has  been  argued  that  the  latter  are  not  in- 
cluded, and  that  this  appears  from  the  requirement  that  the 
answers  must  be  under  oath ;  and,  for  this  reason,  a  town  was 
held  not  amenable  to  garnishment.^  There  would  seem  to  be 
no  difficulty  about  the  affidavit,  if  artificial  persons  are  in- 
tended under  the  general  term,  since  corporations  always  act 
and  speak  and  swear  by  their  officers.^  The  reasoning  with 
respect  to  the  oath  that  would  exclude  public  would  also  ex- 
clude private  corporations  from  the  intendment  of  the  statute. 

When  municipal  corporations  are  garnishable,  they  are  sub- 
ject to  the  rules  governing  private  garnishees,  but  there  are 
commonly  statutory  exceptions  in  favor  of  officers  and  employ- 
ees, policemen,  agents,  etc.^  They  are  not  liable  to  the  pro- 
cess on  a  claim  which  could  not  be  made  a  cause  of  action 
against  them  in  a  direct  sut  by  their  immediate  creditor. 

The  exemption  of  cities  from  garnishment  inures  to  the 
benefit  of  their  sureties.^ 

lY.  Private  Corporations  in  General. 

§  444.  LiahiUtij. —  Artificial  persons  of  private  character 
are  subject  to  garnishment  precisely  as  natural  persons.^  A 
corporation  speaks  through  its  president  or  other  representa- 
tive officer,  and  may  thus  answer  interrogatories  under  oath 
as  well  as  any  other  third  person  holding  assets  of  the  defend- 
ant or  indebted  to  him.  Liable  to  direct  suit,  it  is  liable  to 
the  side  action  by  which  it  is  summoned  into  court  to  declare 
its  position,  and  it  may  be  ordered  to  pay  over  what  it  has, 

1  Clapp  V.  Davis,  25  la.  315.  McDonalcL  5  Ga.  531 ;  Branch  Bank 

2  Bradley  v.  Town  of  Richmond,  6    v.  Poe,  1  Ala.  396;  Cook  v.  Walthall, 
Vt.    121 ;    Union   Turnpike   Road   v.     20  id.  334. 

Jenkins,  2  Mass.  37.  *  Keyser  v.  Rice,  47  Md.  203. 

3  Oliver  v.  C.  &  A.  R.  R.  Co.,  17  111.        &  City  of  Dallas  v.  Western  Electric 
587 :   Head  v.   Merrill,   34  Me.   586 ;     Co.,  83  Tex.  243. 

Bushel  V.  Commonwealth  Ins.  Co.,  13        ^  Knox  v.  Protection  Ins.  Co.,  9  Ct. 
S.  &  R.'  173 ;  Callahan  v.  Hallowell,    430. 
2  Bay,  8 ;  South  Carolina  R.  R.  Co.  v. 


§  44:4.]  PRIVATE    CORPORATIONS    IN    GENERAL.  319 

just  as  any  other  garnishee  may  be.^  The  summons  must  be 
directed  to,  and  served  upon,  the  corporation  itself;  upon 
such  officer  as  it  puts  forward  to  represent  it  as  a  body ;  not 
upon  any  officer  thereof,  since  the  summons  might  thus  be 
binding  only  on  the  subordinate  and  not  legally  bring  the 
corporation  itself  into  court.^ 

The  summons  should  be  directed  to  the  corporation  itself.^ 
Judgment  cannot  be  rendered  against  a  corporation  as  gar- 
nishee unless  it  has  been  legally  summoned.*  If  summons  on 
its  "  nearest  agent "  is  allowed,  the  return  must  so  describe 
him  as  to  identif}^  him.'^  Service  on  a  corporation  "  manager" 
was  held  bad  where  the  statute  described  what  persons  should 
be  served.^  Service  on  a  foreign  corporation,  by  garnishing 
the  insurance  commissioners  of  the  state,  was  allowed  under 
statute." 

A  corporation  should  answer  as  garnishee  through  its  official 
head,  by  the  officer  entitled  to  use  its  seal,  or  by  such  person 
as  the  body  is  accustomed  to  put  forward  to  represent  it  in 
legal  matters,  provided  he  is  so  authorized  that  his  answers  will 
bind  the  corporation.  When  an  oath  is  requisite,  it  must  be 
made  by  the  president  or  other  official  head,  or  by  the  duly 
authorized  person  who  is  capable  of  binding  the  corporation, 
whoever  he  may  be,  under  the  charter.^ 

1  Bait.  &  Ohio  R.  R.  Co.  v.  Galla-  and  cashier  were  temporarily  out  of 
hue,  13  Grattan,  655 ;  Boyd  v.  Chesa-  the  bank  room,  was  held  good.  First 
peake  &  Ohio  Canal  Co.,  17  Md.  195 ;  N.  Bank  v.  Turner,  30  Neb.  80.  So 
Taylor  v.  Burlington  &  Mo.  R.  R  service  on  a  station  agent  of  a  rail- 
Co.,  5  la.  114;  Wales  v.  Muscatine,  road  company.  Mangold  v.  Dooley, 
4  id.  303 ;  Knox  v.  Protection  Ins.  Co.,  89  Mo.  111. 

9  Ct  430 ;  Trenton    Banking   Co.  v.  "  Insurance    Co.   v.   Friedman,    74 

Haverstick,  6  Halsted,  171.  Tex.  56. 

•-'Wilder    v.   Shea,    13   Bush,    138;  ^  Haley  i'.  Railroad  Co.,  80  Mo.  113; 

Kennedy  r.  H.  L.  «&  S.  Society,  38  Gales  v.  Tusten,  89  id.   13 ;  Mangold 

Cal.  151 ;  Claflin  v.  Iowa  City,  13  la.  v.  Dooley,  id.  Ill;  Farmer  u  Medcap, 

284;  Clark  v.  Chapman,  45  Ga.  486;  19  Mo.  A  pp.   250;  Insurance  Co.  v. 

Lambeth  v.   Clarke,    10    Heisk.    33 ;  Friedman,  74  Tex.  56 ;  McDonald  v. 

Harris  v.  Somerset  &  Ken.  R  R.  Co.,  Moore,  65  la.  171. 

47  Me.  398 ;  Greer  v.  Rowley,  1  Pitts-  ^  Norvell  v.  Porter,  63  Mo.  309. 

burgh,  1 ;  Davidson  y.  Donovan,  4  Cr.  ^Tompkins,   etc.   Co.    v.    Schmidt 

C.  C.  578.     Not  good  on  book-keepei-.  (Tex.),  16  S.  W.  174. 

Pettit  V.  Booming  Co.,  74  Mich.  314.  "Mohassuck  Felt  Mills   v.  Bland- 

But  service  on  the  book-keeper  dur-  ing,  17  R  I.  397. 

mg  bank  hours,  when  the  president  « Baltimore  &  O.  R  Co.  v.  Galla- 


320  CORPORATIONS    AS    GARNISHEES.  .  [§  445. 

Although  in  an  attachment  suit  against  a  private  corpora- 
tion the  treasurer  of  that  corporation  cannot  be  made  a  gar- 
nishee and  the  funds  he  officially  holds  attached  in  his  hands,^ 
yet  in  a  garnishment  proceedings  against  such  body  the  sworn 
answer  may  be  by  the  treasurer  if  authorized  to  represent  it.^ 

A  corporation  cannot  be  successfully  garnished  upon  the 
showing  that  the  attachment  defendant  had  done  work  for  it, 
and  that  its  books  indicate  a  balance  in  his  favor;  there  should 
be  the  further  showing  that  such  balance  is  due  and  payable 
to  the  defendant.*  It  should  be  made  to  appear  that  the  cor- 
poration has  a  definite  sum  of  money  in  hand  belonging  to 
the  defendant  which  it  cannot  justly  retain,  which  is  the  rule 
when  a  natural  person  is  subjected  to  garnishment,*  or  that  it 
is  unconditionally  indebted  to  him,  or  holds  property  of  his, 
according  to  the  general  rule.  It  may  have  received  a  de- 
posit from  an  agent,  and  be  liable  to  garnishment  in  a  suit 
against  him  when  no  principal  is  disclosed  or  has  appeared.^ 

Y.  Banks. 

§  445.  Only  what  a  bank  holds  of  the  defendant's  property, 
or  what  it  owes  him,  can  be  reached  by  garnishment.  It  does 
not  hold  the  stock  of  a  stockholder  of  its  corporation  in  such 
a  sense  as  to  be  his  debtor.  The  same  is  true  of  any  other 
corporation  with  regard  to  any  part  of  its  own  stock  owned 
by  the  defendant.  "A  certificate  of  stock  is  not  a  security 
for  money,  nor  a  negotiable  instrument  in  the  strict  sense; 
simply  a  muniment  and  evidence  of  the  holder's  title  to  a  de- 
scribed share  or  interest  in  stock,  as  in  the  propert}''  and  fran- 
chises of  a  corporation."  ^ 

hue,  13  Gratt.  655 ;  Head  v.  Merrill,  3  Hewitt  v.  Wagar  Lumber  Co.,  38 

34  Me.  586 :  Oliver  v.  Chicago  &  A.  R.  Mich.  701. 

R.  Co.,  17  111.  587.     It  was  held  in  ■*  Peninsular  Stove  Co.  u  Hosmer, 

Georgia  that  the  temporary  absence  85  Mich.   400 ;    Connor  v.   Third  N. 

of  the  president  of  a  domestic  cor-  Bank,  90  id.   328 ;  Rice  v.  Third  N. 

poration  will  not  warrant  service  of  Bank,  97  id.  414. 

garnishment  on  a  subordinate  officer  &  proctor  v.  Greene,   14  R.   I.  42; 

or  agent.   Steiner  v.  Central  R.  R.  Co.,  Gregg  v.  Bank,  80  Mo.  251. 

60  Ga.  552.  6  Anderson's     Law     Die,      Verbo 

1  Mueth  V.  Schardin,  4  Mo.  App.  "  Stock,"  p.  976,  citing  Bailey  i\  New 
403.  York  Central  R  Co.,  23  Wall.  636. 

2  Chicago  &  R.  I.  R.  Co.  v.  Mason, 
11  111.  App.  525. 


§§  4'IG,  447.]  INSURANCE    CO:S[PANIES.  321 

§  446.  A  bank  receiving  funds  belonging  to  a  firm  known 
to  be  insolvent,  in  payment  of  a  note  due  by  one  member  of 
the  firm,  may  be  garnished  as  the  holder  of  funds  of  the  firm, 
in  an  attachment  suit  against  such  insolvent  partnership.^ 
Knowledge,  on  the  part  of  the  bank,  that  a  sum  paid  to  it  was 
not  the  money  of  its  debtor,  would  make  it  a  party  to  the 
fraud  thus  perpetrated  upon  the  creditors  of  the  insolvent 
firm.  The  bank  would  thus  become  the  unlawful  holder  of 
that  which  was  the  common  pledge  of  the  creditors  before  the 
attachment,  and  of  that  upon  which  the  attachment  creditor 
had  a  hypothetical  lien  after  the  attachment  and  garnish- 
ment. 

A  bank,  conniving  at  the  withdrawal  of  a  deposit  by  a 
debtor  after  it  has  been  garnished,  will  be  charged ;  ^  but  not 
when  summoned  between  the  drawing  and  the  paying  of  the 
debtor's  check  when  there  is  no  connivance.^ 

The  payee  of  a  bill  of  exchange  indorses  it  for  deposit  to 
his  own  credit.  The  proceeds  may  be  reached  by  garnish- 
ment in  the  hands  of  the  third  indorsee  to  whom  the  bill  was 
indorsed  by  the  second  indorsee  "for  collection"  to  his  own 
account.  The  third  indorsee  is  merely  collector  for  the  payee 
to  whom  the  bill  belongs ;  so,  in  a  suit  against  the  payee,  the 
third  indorsee  may  be  garnished.*  A  garnished  bank  is  not 
bound  to  pay,  on  negotiable  paper,  anybody  but  the  holder.* 

YI.  Insueance  Companies. 

§  447.  The  indebtedness  of  an  insurance  company  upon  a 
policy  may  be  reached  by  garnishment.  But  if  there  has  been 
a  loss  by  fire,  and,  by  the  terms,  of  the  policy,  the  company 
has  the  right  to  rebuild,  it  would  not  be  liable  as  garnishee  in 
a  suit  against  the  insured  by  his  creditor.^     It  may  be  gar- 

1  Johnson  v.  Hersey,  70  Me.  74.  5  Karp  v.  Citizens'  Bank,  76  Mich 

2  Gibson  v.  Park  Bank,  98  N.  Y.  87.     679 ;    Leadvilie    Bank    v.   Leppel,  9 

3  Bank     of    America     v.    Indiana    Colo.  594. 

Banking  Co.,  114111.  483.    ^ee  Brown  g  Godfrey  v.  Macomber,  128  Mass. 

V.  Leckie,  43  id.  497;  Union  N.  Bank  188;  Thorp  v.  Preston,  42  3Iich.  511 ; 

V.  County  Bank,  80  id.  212;  Howard  Hurst  v.  Insurance   Co.,  81  Ala.  174; 

Iron  Co.  V.  Tillman  (Ala.),  15  So.  450.  Stone   v.  Insurance  Co.,  74  Md.  579, 

*  Freeman    v.    Sturges   Exchange  distinguishing  Anderson    v.  Assur- 

Bank,  86  Ga.  622,    See  Baer  v.  En-  ance  Co.,  55  L.  J.  Q.  B.  146. 
glish,  84  id.  403. 
21 


322  COKPORATIONS   AS    GARNISHEES.  [§  448. 

nishecl  before  adjustment  of  the  loss,  but  not  charged  before,^ 
unless  the  company  has  waived  proof  of  loss.^  It  is  not  liable 
in  a  suit  against  the  husband  when  the  insurance  is  due  to  his 
wife.^ 

The  policy  is  the  property  of  him  to  whom  it  was  issued, 
though  the  premium  may  have  been  paid  by  another;  so  the 
company  may  be  garnished  in  the  suit  against  the  holder  of 
it,  and  not  in  one  against  the  owner  of  the  property  insured.* 

The  money  payable  by  an  insurance  company,  in  case  of 
loss,  to  a  mortgagee  of  the  insured  property,  is  not  liable 
to  be  subjected  to  garnishment  process  by  the  mortgagor's 
creditors.^ 

A  garnishee,  who  holds  insurance  policies  as  collateral  secu- 
rity for  a  joint  owner  of  them,  cannot  be  charged  unless  all 
the  joint  owners  be  made  parties,  it  is  held.^ 

The  agents  of  an  insurance  compan}''  cannot  be  garnished 
for  debts  due  by  the  company  to  the  attaching  creditor,  unless 
they  have  property  or  funds  of  the  company  in  hand.^ 

§  448.  It  was  held  in  Virginia  that  an  insurance  company, 
incorporated  under  United  States  laws,  though  complying 
with  the  laws  of  that  state  in  relation  to  foreign  insurance 
companies  doing  business  therein  (Ya.  Code,  1873,  ch.  36", 
§  19),  is  subject  to  foreign  attachment.^ 

An  insurance  company  may  be  garnished  when  doing  busi- 
ness as  a  foreign  corporation;''  and  the  garnishment  will  not 
be  defeated  by  notice  of  an  assignment  served  on  its  agent.^" 
Such   company,  doing  business    in  Illinois  and  some   other 

1  Phoenix  Ins.  Co.  v.  Willis,  70  Tex.  Schmidlapp  v.  La  Confiance  Ins.  Co., 
12;  Hanover  Ins.  Co.  v.  Connor,  20  71  id.  246.  An  agent  of  the  insured, 
111.  App.  297 ;  Bucklin  v.  Powell,  60  instructed  to  collect  a  policy  due  and 
N.  H.  119.  Conijjare  Crescent  Ins.  pay  himself  as  a  creditor  of  the  in- 
Co.  V.  Moore,  63  Miss.  419.  sured,  is  not  the  owner  of  the  policy  ; 

2  Ritter  v.  Insurance  Co.,  28  Mo.  so  the  company  may  be  garnished, 
App.  140.  while  it  holds   the  money,  by  any 

3  Houghton  V.  Lee,  50  Cal.  101.  other  creditor  of  the  insured.  Green- 

4  Tim  V.  Franklin,  87  Ga.  93.  wood  v.  Boyd,  etc.  Factory,  86  Ga. 

5  Mansfield  v.  Stevens,  31  Minn.  40 ;  582. 

Coykendall  v.  Ladd,  32  id.  529 ;  North  8  Cowardine  v.  Universal  Life  Ins. 

Star,  etc.  v.  Ladd,  id.  381.  Co.,  32  Gratt.  445. 

« Kennedy  v.  McLellan,  76   Mich.  ^  Weed    Sewing    Machine    Co.    v. 

598.  Boutelle,  56  Vt  570. 

7  Daniels  v.  Meinhard,  53  Ga.  359 ;  lo  Id. 


§  440.]  COMMON    CAKEIERS.  323 

states,  ma}'^  be  garnished  by  a  non-resident  creditor,  in  a  suit 
against  the  insured,  though  the  policy  be  payable  in  the  state 
of  the  home  office.^  This  may  not  be  held  in  every  state,  as 
it  is  a  matter  of  comity  and  policy.  If  the  company  has  been 
already  garnished  for  the  same  debt,  and  it  has  been  legally 
thus  attached,  in  the  home  state  or  elsewhere,  and  the  fact  is 
disclosed  in  the  answer,  the  garnishee  should  not  be  charged. 
Liability  may  turn  upon  waiver.- 

A  life  insurance  company  is  not  liable  to  garnishment  in  a 
suit  against  the  heirs  of  the  insured  decedent,  when  the  policy 
is  payable  to  the  administrator;'  or  in  a  suit  against  a  hus- 
band, when  the  policy  was  taken  by  his  wife  on  her  own  life 
and  by  her  own  funds;  ^  but  in  a  suit  against  a  debtor-owner 
of  a  paid  policy  already  due  to  him,  the  company  may  be  gar- 
nished though  no  time  for  the  delivery  has  been  appointed,'^ 

YII.  Common  Carriers. 

§  449.  Goods  in  transitu. —  Corporations  engaged  in  trans- 
porting goods  and  passengers  are  garuishable  for  what  they 
have  or  owe  the  principal  defendant,  just  as  private  persons 
are  liable.  But  they  often  have  peculiar  relations  which  have 
given  rise  to  decisions  as  to  their  liability  under  various 
circumstances. 

It  has  been  held  that  a  railroad  company  cannot  be  gar- 

1  Roche  V.  R  I.  Ins.  Ass'n,  2  111.  ^Jq  Lovejoy  v.  Hartford,  etc.  Ins. 

App.  360;  Fithian  v.  New  York,  etc.  Co.,  11  Fed.  63,  it  was  decided  that  if 

R  Co.,  81  Pa.  St.  114;  McAllisters,  an   insurance   company  has  waived 

Insurance  Co.,  28  Mo.  214 ;  Commer-  its  right  to  await  the  proof  of  loss, 

cial  Bank  v.  Chicago,  etc.  R.  Co.,  45  before  service  of  garnishment,  it  be- 

Wis.  172 ;  Brauser  v.  Insurance  Co.,  comes  liable  to  be  charged  as  gar- 

21  id.  50G.     The  facts  in  the  Roche  uishee;  but  that  the  rule  is  otherwise 

case  above  cited   were  as  follows  :  when  there  has  been  no  waiver.    The 

The  Rhode  Island  Insurance  Associa-  company's  debt  is  not  due  and  liqui- 

tion  had  an  agency  in  Illinois  and  dated  before  the  adjustment  of  the 

another  in  Wisconsin,  and  was  gar-  loss  according  to  the  terms  of  the 

uished  in  both  states  by  the  same  contract. 

attachment  creditor  to  reach  a  policy  ^  Stowe  v.  Phinney,  78  Me.  244 ;  57 

debt  due  the  defendant  in  the  suits.  Am.  Rep.  796. 

The  indebtedness  was  on  a  policy  of  ^  Nims  v.  Ford,  159  Mass.  575. 

insurance  upon  the  defendant's  prop-  ^  Tradesmen's  N.  Bank  v.  Cresson, 

erty  in  Wisconsin  and  was  there  ex-  10  Pa.  Co.  Ct  R  57 ;  Levi  v,  Franklin, 

empt  by  statute;  still  the  company  87  Ga.  98. 
was  held  as  garnishee  in  Illinois. 


324  COEPORATfONS    AS    GARNISHEES.  [§  450. 

nished  as  the  possessor  of  goods  in  transitu,  in  a  suit  against 
the  consignor,  when  they  have  passed  beyond  the  lines  of  the 
state  in  which  the  writ  is  issued;  nor  while  they  are  yet 
within  the  lines,  if  the  writ  was  served  too  late  for  the  com- 
pany to  stop  the  shipping.  "  Public  policy  and  the  proper 
discharge  of  the  duties  of  common  carriers  require  that  they 
cannot  be  held  liable  upon  a  garnishee  summons  for  personal 
chattels  in  their  possession  in  actual  transit  at  the  time  the 
summons  is  served."  ^ 

In  a  suit  against  the  consio:nee  the  carrier  is  not  tarnish- 
able  for  goods  consigned  when  they  are  not  the  property  of 
the  consignee  before  delivery  to  him  in  another  state,  whither 
the  officer  could  not  go  to  receive  them.^ 

§  450.  A  railroad  company  in  ]^e\v  York  was  lessee  of 
roads  in  Yermont  which  it  operated  in  both  states.  It  was 
held  in  the  latter  state  that  the  company  could  not  be  gar- 
nished there  for  a  debt  payable  in  the  former,  where  both 
plaintiff  and  defendant  resided.^  Whether  a  common  carrier 
may  be  garnished  for  goods  deliverable  in  a  state  other  than 
that  in  which  the  writ  was  issued  has  been  the  subject  of  de- 
cision turning  upon  circumstances.^  The  affirmative  has  been 
held.^  A  debt  due  by  a  company  to  its  employee  in  his  state 
has  been  held  not  liable  to  be  reached  by  the  garnishment  of 
the  company  in  another  state.^  A  railroad  company  operated 
in  Ohio  may  be  garnished  there  as  if  it  were  a  domestic  cor- 
poration, though  incorporated  in  another  state.'  The  res  must 
be  within  the  jurisdiction  in  garnishment  as  well  as  in  direct 
attachment.^ 

1  Bates  V.  Chicago,  etc.  R.  Co.,  60  6  Louisville,  etc.  R.  Co.  v.  Dooley, 
Wis.  296.  See  St.  Louis,  «tc.  R.  Co.  78  Ala.  524 ;  Wells  v.  East  Tenn.  etc., 
r.  Larned,  103  111.  293 ;  Illinois  Cen-  74  Ga.  548 ;  Straus  v.  Chicago,  etc. 
tral  R.  Co.  v.  Cobb,  48  id.  402;  Mich-  Co.,  46  Hun,  316;  Todd  v.  Mo.  Pac. 
igan  Central  R.  Co.  v.  Chicago,  etc.  etc.  Co.,  33  Mo.  App.  110;  Fielder  v. 
R.  Co.,  1  Bradw.  399.  Jessup,   24    id.   91 ;    Drake  v.   Lake 

2  Clark  V.  Brewer,  6  Gray,  320 ;  Shore,  etc.,  69  Mich.  168.  Compare 
Walker  v.  Detroit,  etc.  R  Co.,  49  Burlington,  etc.  Co.  v.  Thompson,  31 
Mich.  446.  Kan.  180. 

3  Towle  V.  Wilder, ,57  Vt.  623.  '  Pennsylvania  R.  Co.  v.  Peoples,  31 

4  See  Illinois  Central  R.  Co.  v.  Cobb,  Ohio  St.  537. 

48  111.  402,  relative  to  property  not  in  s  Pennsylvania  R.  Co.  v.  Pennock, 
the  county  when  the  writ  was  issued.     51   Pa.  St.  244 ;  Wheat  v.  Railroad 

5  Adams  v.  Scobt,  104  Mass.  104.  Co.,  4  Kan.  370. 


§§  451-453.]  COMMON   CARRIERS.  325 

§  451.  A  railroad  company,  holding  goods  as  a  warehouse- 
man, after  transjDortation,  may  be  garnished  in  a  suit  against 
the  owner.  The  lien  of  the  company  as  warehouseman  ranks 
iibove  that  of  the  pledgee  of  the  property  (pledged  to  secure 
debt  due  him)  who  caused  the  transportation  and  storing. 
Sale  by  the  pledgor  to  the  pledgee,  after  the  garnishment, 
would  not  affect  the  latter's  rights  between  himself  and  the 
garnishing  creditor.^ 

A  judgment  creditor  may  garnish  the  bailee  of  a  railroad 
<3ompany  to  attach  what  he  holds  of  its  money,  and  thus  create 
a  lien  upon  it,'^  A  railroad  company  may  be  garnished  for  a 
<lebt  which  it  owes  for  the  right  of  way.^ 

§  452.  A  debt  contracted  in  one  territory  may  be  the  sub- 
ject of  the  garnishment  of  a  railroad  company  organized  under 
the  laws  of  the  United  States,  in  another  territory  where  the 
company  does  business.- 

The  garnishment  of  a  railroad  company  in  another  state, 
for  a  debt  due  in  Mississippi,  cannot  affect  exemption  under 
the  law  of  the  latter,  though  the  company  be  domiciliated  in 
both  states.^ 

Where  the  garnishment  of  a  carrier  corporation,  in  a  state 
other  than  that  of  its  domicile,  is  authorized,  it  is  usually 
designated  how  it  is  to  be  served  —  sometimes  the  nearest 
station  agent  is  made  the  proper  one  to  receive  it.  The  return 
should  show  that  the  person  served  is  the  representative  of 
the  company.^  The  statutes  of  the  state  where  the  litigation 
is  had  must  govern.  A  corporation  of  one  state  cannot  do 
business  in  another  without  authorization  and  submission  to 
its  laws.  It  may  be  garnishable  by  law,  though  foreign  cor- 
porations be  not  garnishable  in  the  state  of  its  charter.''  If  a 
corporation  is  chartered  b}^  two  states  it  is  foreign  in  neither.^ 

§  453.  The  baggage  which  a  passenger  on  a  railroad  car  is 
taking  with  him  on  a  journey  remains  so  far  in  his  own  pos- 

iCooley    V.    Transfer    R.    Co.,    53  6  Haley  v.   Railroad,   80  Mo.  112; 

Minn.  327.  IMasterson  v.  Missouri  Pac.  R.  Co..  20 

2  Johnston  r.  Riddle,  70  Ala.  219.  Mo.  App.  653;  Werries  v.   Missouri 

3  Buchanan  Co.  Bank  v.  Cedar  Rap-  Pac.  R.  Co.,  19  id.  398. 

ids.  etc.,  62  la.  494.  -  First  N.  Bank  v.  Burch,  80  Mich. 

*  Losee  v.  Ream,  5  Utah,  528.  242. 

5  Illinois  Central  R  Co.  v.  Smith,  8  Holland  v.  Railroad,  16  Lea,  414. 
70  Miss.  344. 


320  COKPOEATIONS    AS    GARNISHEES.  [§  453. 

session  that  he  may  present  his  check  at  any  time  and  have 
his  trunk,  valise,  etc.,  delivered  to  him,  though  at  a  point  short 
of  the  terminus.  He  may  have  checked  through,  yet  ,raay 
have  concluded  to  stop  over  at  an  intermediate  station,  and  ta 
have  his  baggage  stop  with  him.  It  would  seem,  therefore, 
that  the  baggage,  though  given  to  the  railroad  company  for 
transportation,  is  still  in  the  owner's  possession.  It  is  in  much 
the  same  condition  as  when  given  to  an  expressman  at  the  end 
of  the  journey  to  be  taken  to  a  hotel;  or  as  when  a  carpet- 
sack  is  intrusted  to  a  boy  to  be  taken  to  the  passenger's  stop- 
ping place  while  he  walks  by  the  side  of  the  passenger.  'No 
one  would  think  the  expressman  or  the  errand  boy  subject  to 
garnishment  as  the  possessor  of  the  passenger's  property.  He 
has  such  custody  as  would  render  him  liable  for  any  injury 
attributable  to  improper  keeping.  The  express  company, 
which  takes  trunks  from  the  railroad  depot  to  hotels,  is  cer- 
tainly responsible  for  any  abuse  of  the  articles  in  the  convey- 
ance, but  the  possession  is  so  temporary  and  so  qualified  that 
the  trunks  cannot  be  subjected  to  garnishment  in  such  com- 
pany's hands  unless  it  holds  them  under  conditions  different 
from  those  that  are  usual.  As  the  keeper  of  a  livery-stable 
cannot  be  subjected  to  garnishment  because  horses  of  the  de- 
fendant in  an  attachment  suit  are  kept  in  his  stable,  so  a  like 
temporary  possession  of  trunks  for  transportation  from  depot 
to  hotel,  with  like  liability  to  have  the  owner  take  possession 
at  will,  ought  not  to  subject  the  carrier  to  garnishment  should 
a  creditor  of  the  passenger  seek  to  attach  them.  The  trunks 
may  be  attached  —  the  horses  in  the  livery-stable  may  be  — 
but  not  attached  in  the  hands  of  third  persons  under  the  cir- 
cumstances suggested.  They  may  be  seized  by  the  sheriff  as- 
in  the  hands  of  the  defendant,  and  taken  directly  into  the 
sheriff's  custody.^ 

i  Hall  V.  Filter  Manuf.  Co.,  10  Phila.  that  the  agent  was  not  liable,  because 

870 ;  Western  R  Co.  v.  Thornton,  60  it  had  not  been  proved  that  he  had 

Ga.  300.     In  this  case  a  local  agent  of  any  power  to  dispose  of  the  trunk  at 

the  company  was  summoned  as  gar-  the  depot  where  he  was  stationed, 

nishee  to  hold  in  his  hands  the  trunk  Even  to  this  ruling  there  was  dissent, 

of  a  passenger  who  was  defendant  When  it  is  further^  stated   that  the 

in  the  attachment  suit.     The  decis-  passenger    was    accompanying    his 

ion  was  not  that  the  company  could  own  baggage  en  route  from  Colum- 

not  have  been  made  a  garnishee,  but  bus   to  West  Point    in   Georgia,   it 


§§  454,  455.]  COKPOKATION    SERVANTS.  327 

§  454.  The  possession  which  the  treasurer  of  a  private  cor- 
poration has  of  the  corporation's  funds  is  not  such  as  to  ren- 
der him  liable  to  garnishment  therefor,  in  an  attachment  suit 
against  the  corporation.'  Money  of  a  railroad  company,  in 
the  hands  of  a  fiscal  agent,  has  been  held  not  to  be  garnish- 
able  by  a  creditor  of  the  company.^  Eailroad  bonds  in  the 
hands  of  a  trustee,  to  be  given  to  stockholders  in  exchange 
for  certificates  of  stock,  were  held  to  be  subject  to  the  debts 
of  the  railroad  company  and  garnishable  in  the  trustee's 
hands.^  The  corporation  may  be  garnished  for  mortgage 
bonds  which  it  has  contracted  to  deliver  to  a  trustee  for  the 
benefit  of  the  attachment  debtor.* 

What  is  d-ue  a  railroad  company  for  freight  may  be  reached 
in  a  suit  against  it  by  garnishing  the  consignee  from  whom 
it  is  due ;  but  only  its  portion  when  several  connected  lines 
have  participated  in  the  transportation.^ 

If  a  company  mortgage  its  railroad  to  bondholders,  yet 
retain  the  right  to  possess  and  operate  it  and  receive  the  prof- 
its, its  earnings  are  garnishable  by  ordinary  creditors.® 

YIII.  CoEPOEATioN  Servants. 

§  455.  There  is  a  class  of  persons  who  have  such  intimate 
relations  with  their  principals  that  they  should  not  be  treated 
as  third  persons  so  as  to  bo  liable  to  garnishment  in  suits 
against  their  principals.  The  ticket-agent  of  a  railroad  com- 
pany, theatre,  etc.,  may  hold  money  temporarily,  collected 

would  seem  clear  enough  tliat  the  sistant  treasurer  of  a  railroad  coni- 

local  agent  at  the  end  of  the  route  pany    garnishee,    was     held     good. 

had  not  such  possession  as  would  Whitworth  v.   Pelton.  81    Mich.  98. 

render  him  liable  as  a  garnishee;  See  First  N.  Bank  v.  Burch,  80  id. 

and  it  ought  to  be  as  clear  that  the  242. 

company  itself  would  not  have  been  -^  Wilder  v.  Shea,  13  Bush,  128. 

liable.   A  railroad  company  was  held  ^^Varren  u  Booth,  51  la.  215. 

not  liable  as  garnishee  because  of  ^  Marble  Falls  Ferry  Co.  v.  Spitler 

possessing  borrowed  cars.    Michigan  (Tex.  App.),  25  S.  AY.  985. 

Cent.  R.  Co.  v.  Chicago,  etc.  R.  Co.,  1  ^  Bowler  v.  European,  etc.  R  Co., 

111.  App.  399.     See  Porter  v.  Hilde-  67  Me.  395;  Gould  v.  Newburyport 

brand,   14  Pa.  St.   129 ;  Western  R.  R  Co.,  14  Gray,  472. 

Co.  V.  Thornton,  60  Ga.  300.  6  Miss.  etc.  R  R  Co.  v.  U.  S.  Ex- 

1  Mueth  V.  Schardin,   4  Mo.  App.  press  Co.,  81  111.  534. 
403.    A  disclosure,  made  by  the  as- 


328  COKPOEATIONS    AS    GARNISHEES.  [§§  456,  457. 

for  the  corjDoration  which  he  acts  for,  but  he  would  not  be 
liable  to  garnishment  in  a  suit  against  such  corporation.  The 
same  may  be  said  of  the  receiving  or  paying  teller  of  a  bank 
who  momentaril}^  handles  funds  for  the  bank.  A  keeper  of  a 
toll-gate,  who  makes  daily  returns  of  his  collections,  should 
also  be  deemed  exempt  from  liability  to  garnishment.  Many 
other  illustrations  will  readily  occur  to  the  legal  reader.^  The 
garnishment  of  a  corporation  should  be  quashed  when  the 
affidavit  shows  the  debt  to  be  owing  by  its  agent  —  not  by 
itself.2 

It  is  not  held  everywhere  that  the  servants  of  a  corporation 
(such  as  above  mentioned)  cannot  be  garnished  in  a  suit  against 
it.^  How^ever,  where  the  statute  is  silent  on  the  point,  it  seems 
clear  that  their  relationship  to  the  company  employing  them 
is,  in  most  cases,  incompatible  with  that  of  debtor  to  creditor, 
or  possessor  to  owner  or  the  like. 

§  456.  But  there  are  other  cases  in  which  servants  of  cor- 
porations and  other  principals  should  be  considered  garnish- 
able,  since  otherwise  great  wrong  might  be  done  by  collusion 
between  them  and  the  debtor  defendants.* 

IX.  Corporation  Stock. 

§  457.  Stocks  owned  by  a  debtor-defendant  are  subjected  to 
garnishment  usually  by  leaving  a  copy  of  the  writ  with  the 
garnishee  who  is  summoned  to  appear;  and  where  that  is  re- 
quired, there  can  be  no  attaching  of  stock  in  a  foreign  corpo- 
ration when  the  writ  cannot   be  left  in  accordance  with  the 

1  First  N.  Bank  v.  Davenport,  etc.  Eoad  u  Sammons,  27  Ala.  380,  toU- 
R.  Co.,  45  la.  120 ;  Balston  Spa  Bank  keeper  held  liable.  In  Jepson  v.  In- 
V.  Marine  Bank,  18  Wis.  490;  Mc-  ternational  Alliance,  17  R  I.  471, 
Graw  V.  Memphis,  etc.  Co.,  5  Cold-  the  treasurer  of  a  society  was  gar- 
well,  434 ;  Mueth  v.  Schardin,  4  Mo.  nished  in  a  suit  against  it  to  reach 
App.  403;  Nichols  v.  Goodheart,  5  its  funds  in  his  hands. 
111.  App.  574 ;  McDonald  v.  Gillet,  69  2  Bowers  v.  Insurance  Co.,  65  Tex. 
Me.  271;   Pettingill  v.    Andr.  R.  R.  51. 

Co.,  51  id.  370 ;  Sprague  v.  Steam-  3  Everdell  v.  Sheboygan,  etc.  R.  Co., 

boat  Nav.  Co.,  53  id.  592 ;  Fowler  v.  41  Wis.  305. 

Pittsburg,  etc.  R.  R.  Co.,  35  Pa.  St.  *A    clerk    was    held    garnishable 

22 ;  Farmers',  etc.  Nat.  Bank  v.  King,  when  his  employer  had  absconded 

57  id.  202.     Ticket  agent  held  liable,  and  thus  terminated  the  relation  of 

Littleton  Bank  u  Portland,  etc.  R.  R.  employer  and    employee.     Nolte    v. 

Co.,  58  N.  H.  104.     In  Central  Plank  Von  Gassy,  15  Bradw.  230. 


§  458.]  COKPOKATION    STOCK.  329 

statute;  for  the  court  would  not  acquire  jurisdiction.^  "Stock 
cannot  be  attached  by  attaching  the  certificate,  any  more 
than  lands  situated  in  another  state  can  be  attached  in  Penn- 
sylvania by  levy  on  the  title  deeds."  - 

In  Iowa,  corporation  stock  is  attached  by  notifying  the 
managing  head  of  the  corporation  and  the  attachment  defend- 
ant —  not  by  entering  transfer  on  the  stubs  of  the  stock-book.* 
In  Alabama,  by  indorsement  on  the  writ  and  notice  to  the 
person  in  charge  of  the  corporation  books;  and  the  notice 
may  be  oral.'' 

§  458.  When  a  method  of  attaching  stock  in  third  hands 
has  been  provided  by  statute,  it  must  be  substantially  ob- 
served in  order  to  hold  the  garnishee.'  The  creditor  of  a  cor- 
poration, in  a  suit  against  it,  may  garnish  a  subscriber  to  stock 
who  has  given  his  note  which  is  owing  to  the  defendant.^ 
But  if  he  owes  subject  to  call,  he  is  not  liable  prior  to  call.'^ 
If  he  is  to  pay  in  instalments,  and  has  paid  in  part,  he  may 
be  garnished  for  the  balance  when  it  is  due  and  ascertained.' 
He  cannot  be  garnished  for  his  subscriptions  till  notice  re- 
quired by  statute  (where  there  is  such  requisition)  has  been 
given  for  the  full  time.^  If  he  has  subscribed  for  corporation 
bonds  in  consideration  of  stock  to  be  issued  to  him,  and  is  in- 
debted for  instalments  due,  he  may  be  garnished  in  a  suit 
against  the  corporation. ^^  But  he  cannot  be  charged  for  bonds 
not  issued  when  the  attachment  was  sued  out.^^ 

Stock  held  in  trust  by  a  judgment-debtor,  standing  in  his 
name  and  not  liable  to  execution,  cannot  be  reached  by  gar- 

1  Ai-mour  Banking  Co.  v.  St.  Louis  Teague  v.  Le  Grand,  85  Ala.  493 ; 
N.  Bank,  118  Mo.  12.  Brown  v.  Insurance  Co.,  3  La.  Ann. 

2  Christmas  v.  Biddle,  13  Pa.  St.  223 ;  177 ;  Concullu  v.  Insurance  Co.,  2  Rob. 
Smith  V.  Downey,  132  Ind.  83 ;  Plirap-  (La.)  571 ;  McKelvey  v.  Crockett,  18 
ton  V.  Bigelow,  93  N.  Y.  592.  Nev,    238.  5ee  Lane's  Appeal,  105  Pa. 

3  Commercial  N.  Bank  v.  Farmers',  St.  49 ;  Sangamon,  etc.  Co.  v.  Rich- 
etc.  Bank,  82  la.  192.  ardson,  33  III.  A  pp.  277. 

^  Abels  u  Mobile  Real  Estate  Co.,  8  Qi-eene  r.  Remington,  72  Wis.  648. 

92  Ala.  383.  ■>  Universal  Fire  Ins.  Co.  v.  Tabor, 

5  Younkin  v.  Collier,  47  Fed.  571.  16  Colo.  531. 

s  Wooldridge  v.   Holmes,   78  Ala.  i^  Davis  v.  Montgomery  (Ala.),  8  So. 

568 ;  Carroll  v.  Miller,  93  id.  301 ;  Jo-  496 :  Ruse  v.  Bromberg.  88  Ala.  629. 

seph  V.  Davis  (Ala.),  10  So.  830.  ^  Fidelity  Ins.  Co.  v.  Railroad  Co., 

•Simpson  v.  Reynolds.  71  Mo.  594;  33  W.  Va.  761 ;  Railroad  Co.  v.  Pen- 
Hannah  V.  Moberly  Bank,  67  id.  678 ;  nock,  51  Pa.  St.  244. 


330  COBPOEATIONS   AS    GARNISHEES.  [§  459. 

nishment.^  When  not  so  held,  a  shareholder's  balance,  due 
by  a  corporation,  is  subject  to  the  process,  though  he  may  not 
have  been  notified  of  the  balance.^  Is  stock  held  as  collateral 
security  amenable  to  the  process  in  a  suit  against  its  owner? ^ 
It  has  been  held  that  corporation  stock  in  the  hands  of  a 
pledgee  is  not  garnishable.''  He  has  rightful  possession  and  a 
lien  upon  the  stock,  and  therefore  a  better  right  to  hold  than 
the  creditor  of  the  owner  who  seeks  to  create  a  lien.  Stock  in 
a  foreign  corporation,  owned  by  a  non-resident  but  held  in  trust 
by  a  resident,  cannot  be  reached  by  garnishing  the  trustee.^ 

The  seller  of  his  stock,  who  has  returned  the  stock  certifi- 
cates for  transfer  to  the  purchaser,  cannot  be  garnished  as 
the  possessor  of  the  stock  though  summoned  before  the  trans- 
action has  been  put  in  writing  and  signed  by  him,  and  entered 
upon  the  books  of  the  corporation.*' 

If  shares  of  a  stockholder  can  ordinarily  be  reached  by  the 
garnishment  of  the  corporation  in  which  they  are  held,  in  a  suit 
against  himself,^  it  may  safely  be  said  that  shares  owned  by 
a  non-resident  in  a  foreign  corporation  cannot  be  reached  by 
serving  notice  on  a  secretary  or  other  officer  of  such  body 
who  may  keep  an  office  within  the  jurisdiction.  The  notice 
may  be  complete,  such  as  would  prove  efficient  if  the  shares 
were  within  the  jurisdiction  and  under  the  control  of  the 
officer,  but  the  insurmountable  difficulty  is  that  the  shares 
are  in  another  state.  They  have  not  even  a  constructive  pres- 
ence at  the  place  where  the  officer  is  found.  By  no  legal  in- 
tendment can  they  be  there  when  they  are  really  elsewhere 
and  liable  to  attachment  where  they  are. 

X.    COEPOKATION    IN    FoEEIGN    StATE. 

§  459.  It  does  not  affect  the  situs  of  the  shares  when  the 
foreign  corporation  does  business  in  several  places ;  it  does 
not  give  the  shares  a  situs  in  every  place  where  the  business 

1  Hitchcock    V.    Galveston   Wharf  ecooke  u  Hallett,  119  Mass.  148. 
Co.,  4  Woods,  295.  "'  It  has  been  held  that  they  cannot : 

2  Atwood  V.  Dumas,  149  Mass.  167.  Ross  v.  Ross,  25  Ga.  297 ;  Planters' 

3  Smith  u  Bank,  82  Tex.  368;  Evans  &  Merchants'  Bank  v.  Leavens,  4 
V.  Brownscombe,  8  Pa.  Co.  Ct.  R.  Ala.  753.  And  that  they  can  be: 
456.  Chesapeake  R.  R.   Co.  v.   Paine,  29 

4  Morton  v.  Grafflin,  68  Md.  545.  Gratt  502 ;  In  re  Glen  Iron  Works, 
a  See  Smith  v.  Downey,  132  Ind.  83.     17  Fed.  324. 


§§  460,  461.]         COEPORATION   IN   FOREIGN    STATE.  33l 

is  done.  It  has  been  held  that  a  corporation  does  not  have  a 
multiplicity  of  domiciles  because  it  does  business  in  many- 
places;  that  its  existence  is  owing  to  its  legislative  creation, 
and  it  cannot  overleap  the  boundary  of  the  state  which  gave 
it  being.  "  We  regard  the  principle  to  be  too  firmly  settled 
by  repeated  adjudications  of  the  federal  and  state  courts  to 
aJmit  of  further  controversy,  that  a  corporation  has  its  domi- 
cile and  residence  alone  within  the  boundaries  of  the  sov- 
ereignty which  created  it,  and  that  it  is  incapable  of  passing 
personally  beyond  that  jurisdiction,"  ^  say  the  court  of  appeals 
of  Xew  York. 

§  460,  This  doctrine  formerly  w^as  carried  so  far  as  to  pre- 
clude any  action  against  a  corporation  on  a  personal  demand 
except  in  the  state  of  its  creation.  It  was  held  that  it  dwelt 
at  home  and  could  not  "  migrate  to  another  sovereignty ; " 
that  its  officers  could  not  carr}^  their  corporate  functions  with 
them  when  crossing  the  line  from  the  state  of  its  domicile; 
that  there  was  no  mode  to  compel  its  appearance  in  any  court 
bevond  the  state  in  which  the  corporation  was  chartered. - 
The  doctrine  was  narrow  and  prejudicial  to  commerce;  it 
worked  to  the  detriment  both  of  corporations  and  their  cred- 
itors. Some  courts,  therefore,  though  holding  the  general 
doctrine,  excepted  corporations  which  sent  officers  into  an- 
other state  to  transact  corporation  business  there.^  This  ex- 
ception has  crystallized  into  statute  law  in  many  states ;  and 
now  it  is  generally  held  to  be  the  prevailing  doctrine.* 

§  461.  A  foreign  corporation  doing  business  in  Maine  may 
have  its  agent  garnished  for  property  in  his  possession  owned 
by  a  non-resident  defendant,  though  the  defendant  has  not 

1  Plimpton    V.    Bigelow,  93   N.   Y.  L.  222 ;  Chaffee  v.  Rutland  R  Co.,  55 

598    (citing    Bank    of    Augusta    v.  Vt.  110. 

Earl e,  13   Pet.    519;    Lafayette  Ins.  4  Bair  u.  King,  96  Pa.  St  485 ;  Dar- 

Co.  V.  French,   18  How.  (U.  S.)  404 ;  liugton  v.  Rogers,  13  Phila.   103.     A 

Merrick  v.  Van  Santvoord,  34  N.  Y.  plaintiff  obtained  in  his  own  state  a 

208;  Stevens  v.  Plio^nix  Ins.  Co.,  41  judgment  against  a  foreign  insurance 

id.  150);  Mayor  r.  Liverpool  Ins.  Co.,  company   doing   business   there.     It 

40  ]Md.  595.  was  held  that  the  judgment  debt  had 

-  McQueen  v.  Middleton  Man.  Co.,  a  situs  in  his  own  state  only  for  the 

16  Johns.  5 ;  Peckham  v.  North  Par-  purposes  of  garnishment.     Renier  v. 

ish  in  Haverhill,  16  Pick.  274.  Hurlbut,  81  Wis.  24;  Wis.  Rev.  Stat. 

3  Libbey  v.  Hodgdon,  9  N.  H.  394 ;  g  1974. 
Moulon  V.  Trenton  Ins.  Co.,  24  N.  J. 


332  CORPOEATIONS    A.S    GARNISHEES.  [§  462. 

been  previously  served,  it  is  said  ;^  but  he  must  have  been  noti- 
fied by  publication. 

The  consent  of  the  state  into  which  a  foreign  corporation 
sends  officers  and  does  business  is  necessary;  and,  in  granting 
it,  conditions  may  be  imposed.-  The  conditions  obviously 
must  be  constitutional,  consonant  with  the  maintenance  of 
the  jurisdiction  of  each  state  from  encroachments,  and  such 
as  will  give  foreign  corporations  the  opportunity  of  defending 
suits,  just  as  natural  persons  must  be  afforded  such  opportu- 
nity.^ 

If  the  conditions  imposed  upon  a  foreign  corporation  go 
beyond  these  restrictions ;  if  they  nominally  authorize  service 
upon  a  private  member,  or  even  an  officer  of  a  foreign  corpo- 
ration who  is  not  authorized  by  it  to  represent  the  body, 
when  found  within  the  state  in  which  the  suit  is  brought  and 
in  which  the  corporation  is  not  chartered,  they  would  virtually 
deny  notice  to  the  defendant  and  thus  cut  him  off  from  any 
opportunity  of  defense. 

§  462.  The  corporate  entity  cannot  travel  from  one  state 
to  another,  but  it  can  authorize  an  agent  to  represent  it  be- 
yond its  home  and  no  other  power  can  appoint  such  agent.  If 
one  of  its  officers  is  doing  business  for  it  in  a  state  which  has 
given  its  consent  upon  the  condition  that  such  officer  thus  en- 
gaged may  be  served  with  process  binding  on  his  principal, 
doubtless  he  may  be  legally  served  so  as  to  bind  the  corpora- 
tion ;  but  if  he  is  there  on  his  own  account  merely,  the  foreign- 
chartered  body  cannot  be  served  by  the  service  upon  him, 
officer  of  the  corporation  though  he  be.* 

The  reasoning  which  shows  that  foreign  corporations  must 
have  summons  served  on  their  own  constituted  representatives 
in  personal  actions  is  just  as  applicable  and  forcible  when  the 
suit  is  only  nominally  personal  but  is  in  effect  against  their 
property  (an  attachment  suit).     In  either  case  there  must  be 

1  Cousens  v.   Lovejoy,  81   IMe.  467,  Lafayette  lus.  Co.  v.  French,  1 8  How. 

distinguishing  Lovejoy  v.  Albee,  33  404. 

id  414;  Columbus  Ins.  Co.  u  Eaton,  3  id. ;    Newell    v.    Great    Western 

85  id.  391,  and  Smith  v.  Eaton,  36  id.  Railway  Co.,  19  Mich.  344. 

298.  "  Id. ;  St  Clair  v.  Cox.  106  U.  S.  350, 

a  Paul    V.  Virginia,   8    Wall.   168;  358. 


§§  463,  464.]  SITL'S   OF    SHARES.  333 

either  summons  or  publication  notice  and  thus  opportunity 
for  defense  accorded.^ 

§  463.  A  corporation  may  sue  and  be  sued  in  a  state  other 
than  that  of  its  domicile  where  it  does  business  and  has  an 
officer  representing  it  who  may  be  served  with  process.-  But 
its  liability  to  suit  there  is  no  argument  to  prove  that  its  prop- 
erty, situated  at  its  domicile,  is  constructively  in  the  state  and 
liable  to  be  attached.  iSTor  is  it  any  argument  that  a  non- 
resident who  owns  stock  in  the  corporation  at  its  domicile  has 
such  stock  constructively  wherever  elsewhere  the  corporation 
may  have  established  an  agency  so  as  to  render  it  attachable 
as  his  property  in  every  such  place. 

XI.  Situs  of  Shares. 

§  464.  If  a  corporation  may  be  deemed  a  creditor  of  the 
shareholder  wherever  it  has  established  an  agency  and  placed 
officers  so  that  it  may  there  sue  and  be  sued;  and  if  under 
such  circumstances,  b}^  reasonof  statutory  provisions,  the  credit 
may  be  subject  to  the  garnishment  process  in  a  case  of  foreign 
attachment  against  the  non-resident  stockholder,^  it  does  not 
follow  that  the  shares  could  be  directly  attached  as  things 
within  a  jurisdiction  other  than  their  own  situs;  in  other 
words,  to  quote  again  from  Plimpton  v.  Bigelow  {sujprd): 
"  Manifestly  the  res  cannot  be  within  the  jurisdiction,  as  a 
mere  consequence  of  a  legislative  declaration,  when  the  actual 
locality  is  undeniably    elsewhere.      .     .  "Whatever   view 

may  be  taken  as  to  the  right  to  attach  a  debt  owing  by  a  for- 
eign corporation  to  a  non-resident,  by  service  of  notice  on  an 
agent  of  the  corporation  within  the  jurisdiction,  we  think,  in 
respect  to  corporate  stock,  which  is  not  a  debt  of  the  corpora- 
tion in  any  proper  sense,  it  would  be  contrary  to  principle  to 

lid.,   p.   351.     "No  question   was  Ins.  Co.,  21  "Wis.  506.    Service  of  gar- 
raised"  on  this  point.  nishment  on  an  officer  of  a  forei.2;n 

2Gibbs  r.  Queen  Ins.  Co.,  63  N.  Y.  benevolent  association  found  in  the 

114;  20  Am.  Rep.  513 ;  Lafayette  Ins.  state  and  his  disclosure  v.ere  held 

Co.  V.  French,  18  How.  (U.  S.)  40-1 ;  binding  on  the  association.     First  N. 

Jones  V.  N.  Y.  &  Erie  R  Co.,  1  Grant.  Bank  v.  Burch,  80  Mich.  242. 

457;  Fithian  v.  N.  Y.  &  Erie  R.  Co.,  SBarr  v.  King,  96  Pa.  St.  485;  Na- 

31  Pa.  St.  114;  McAllister  r.  Pa.  Ins.  tional  Bank  v.  Huntington,  129  Mass. 

Co.,  28  Mo.  214 ;  Brauser  v.  New  Eng.  444. 


334  COKPOKATIONS   AS    GARNISHEES.  [§  465. 

hold  that  it  can  be  reached  by  such  a  notice.  "We  are  there- 
fore of  the  opinion  that  the  fundamental  condition  of  attach- 
ment proceedings,  that  the^'es  must  be  within  tlie  jurisdiction 
of  the  court  in  order  to  an  effectual  seizure,  is  not  answered 
in  respect  to  shares  in  a  foreign  corporation  by  the  presence 
here  of  its  officers,  or  by  the  fact  that  the  corporation  has 
property  and  is  transacting  business  here,  and  that  section  047 
[of  the  New  York  code]  must  be  construed  as  applying  to 
domestic  corporations  only."  ^ 

§  465.  An  intangible  interest  may  be  the  res  of  the  direct 
attachment  suit  as  well  as  a  tangible  thing,^  The  difference 
in  the  method  of  seizure  does  not  render  the  one  more  liable 
to  attachment  than  the  other.  Either  may  be  reached  by  di- 
rect attachment  or  by  garnishment  depending  solely  on  its 
custody  —  whether  in  the  hands  of  the  defendant  or  in  those 
of  a  third  person.  Either  may  be  made  the  res  of  an  attach- 
ment suit,  if  it  is  within  the  jurisdiction;  neither  can  be  (on 
any  general  principle)  if  it  is  without  the  jurisdiction.  Gar- 
nishment process  cannot  be  prosecuted  without  a  7'es  any 
more  than  direct  process  of  attachment  can.  If  a  credit  is 
subjected  to  garnishment,  that  is  the  intangible  res  which  is 
proceeded  against.  If  some  right  susceptible  of  seizure  only 
by  notice  is  held  directly  by  the  defendant,  it  may  be  the  in- 
tangible res  that  is  proceeded  against.  So  the  doctrine  that 
shares  in  a  corporation  cannot  be  attached  when  they  are 
located  beyond  the  jurisdiction  should  be  extended  to  "in- 
tangible interests  "  and  to  credits,  either  located  or  payable 
there,  as  the  case  may  be;  and  it  is  difficult  to  conceive  how 
any  legislature  can  effectually  declare  any  property  whatever 

1  The  court  cited  Moore  v.  Geunett,  another  state  for  the  debt  under  law 

2  Tenn.  Ch.  375 ;  Christmas  v.  Biddle,  there   for  serving  foreign  corpora- 

13  Pa.  St.  223 ;  Childs  v.  Digby,  24  id.  tions.     Ala.,  etc.  R.  Co.  v.  Chumbey, 

26;  Drake  on   Attachment,   §§  244,  92  Ala.  317;  Louisville,  etc.    R    Co. 

471,  478,  to  support  the  doctrine  as  a  v.    Dooley,    78    id.    524.      Compare 

general  principle ;  and,  to  show  that  East  Tenn.  R.  Co.  v.  Kennedy,  83  id. 

the  defendant  might  have  the  attach-  462.  See  Green  v.  Bank,  25  Ct.  452. 
ment  vacated :    Dunlop  v.  Patterson        2  Tufts  v.  Volkening  (Mo.),  27  S.  W. 

Fire  Ins.  Co.,  74  N.  Y.  145 ;  30  Am.  522.     A  claim  against  a  railroad  com- 

Rep.  283 ;  Blossom  v.  Estes,  84  N.  Y,  pany  for  damages,  is  not  subject  to 

617.     In  Alabama   it  is  held  that  a  attachment.     Selheimer  v.  Elder,  98 

domestic    corporation,    indebted    to  Pa.  St.  154. 
resident,    cannot     be    garnished    in 


§§  4:66,  467.]  SITUS  of  shakes.  335 

to  be  in  a  different  place  from  that  which  it  really  occupies. 
A  foreign  corporation  is  not  garnishable  when  holding  noth- 
ing of  the  defendant  within  its  state  and  owing  him  nothing 
payable  there.^ 

§  4:66.  In  a  case  of  foreign  attachment  in  which  the  non- 
resident debtor  is  not  served  and  does  not  appear,  though 
notified  by  publication;  and  in  which  a  creditor  of  the  de- 
fendant, being  garnished,  answers  that  he  owes  the  defendant, 
if  that  credit  thus  attached  in  third  hands  is  not  the  7'es  of  the 
suit,  against  what  does  the  attaching  creditor  proceed?  And 
if  the  credit  is  amenable  only  to  a  foreign  jurisdiction,  how 
can  the  court  be  said  to  have  jurisdiction  over  it?  It  would  be 
precisely  as  if  the  garnishee  had  answered  that  he  held  in  his 
possession  and  under  his  control  tangible  property  in  another 
state  belonging  to  the  defendant.  The  credit  is  attachable 
when  it  has  followed  the  person  garnished  and  has  thus  come 
within  the  jurisdiction;  when  it  is  collectible  within  the  juris- 
diction. Its  liabilit}^  is  governed  by  precisely  the  same  prin- 
ciple which  governs  that  of  things  susceptible  of  manipula- 
tion.- 

§■±67.  Jurisdiction,)  etc. —  If  the  court's  jurisdiction  is  con- 
fined to  a  county,  service  on  a  railroad  company  creates  no 
lien  upon  property  not  within  the  county  at  the  time.^ 

Where  the  jurisdiction  of  the  court  is  established,  there  can 
be  no  doubt  that  a  stock  subscriber  who  has  not  paid  may  be 
garnished  as  the  debtor  of  the  corporation  which  has  sold  him 
the  stock,  in  an  attachment  suit,  foreign  or  domestic,  against 

1  Wright  V.  Chicago,  etc.  R  Co.,  19  to  the  attachment,  must  be  within  the 

Neb.  175 ;  Matthews  v.  Smith,  13  id.  jurisdiction.    .    .   .    The  principle  [is] 

190 ;  Lawrence  v.  Smith,  45   N.  H.  found  in  the  codes  of  all  enlightened 

533 ;  Jones  v.  Winchester,  6  id.  497 ;  nations  that  jurisdiction,  to  be  rightly 

Gold  V.  Railroad  Co.,  1   Gray,  424 ;  exercised,  must  be  founded  upon  tlie 

Nye  V.  Liscombe,  21  Pick.  263 ;  Dan-  presence  of  the  person  or  thing,  in 

forth  V.  Penny,  3  Met.  564 ;  Tingley  respect  to  which  the  jurisdiction  is 

u  Bateman,  10  Mass.  343.  exerted  within  the  territory.    (Story's 

i"  Credits,   choses  in   action    and  Confl.  of  Laws,  §§  5.32,  592a;  Gibbs 

other  intangible  interests  are  made  v.  Queen  Ins.  Co.,  63  N.  Y.  114;  20 

by  statute  susceptible  of  seizure  by  Am.  Rep.  513 ;  Street  v.  Smith,  7  W. 

attachment      The    same    principle,  &  S.  447.) "    Plimpton  v.  Bigelow,  93 

however,  applies  in  this  case  as  in  N.  Y.  596,  597. 

the  other ;  the  res.  that  is,  the  intan-        s  Sutherland    v.    Peoria    Bank,  73 

gible  right  or  interest  to  be  subject  Ky.  250.     In  Indiana  a  foreign  cor- 


336  CORPOKATIONS    AS    GARNISHEES.  [§  468. 

the  corporation.^  And  he  is  chargeable  for  unpaid  calls  on 
assessments.- 

§  468.  As  the  receiver  for  a  foreign  corporation,  appointed 
in  the  state  where  such  body  is  domiciliated,  must  make  him- 
self a  party  to  the  suit  in  the  state  where  it  is  instituted 
against  property  of  such  corporation  before  he  can  plead  and 
defend  against  the  attachment,^  so  he  must  be  duly  qualified 
to  represent  the  corporation  before  it  can  be  garnished 
through  him. 

Though  the  corporation  may  legally  designate  some  minor 
officer  upon  whom  process  may  be  served,  or  authorize  such 
officer  to  answer  when  the  service  may  have  been,  on  another, 
a  minor  officer  not  thus  designated  cannot  be  made  the  rep- 
resentative of  the  body  at  the  will  of  the  attaching  creditor, 
or  at  his  own  will;  and  therefore  neither  service  upon  him 
nor  acceptance  thereof,  nor  even  his  appearance,  can  bind  the 
corporation  without  its  assent,*  either  as  defendant  or  gar- 
nishee. 

poration  may  be  sued  by  attachment  v.  Irvine  (Ala.),  15  So.  429,  distin- 
in  any  county  where  it  has  an  agent,  guishing  Parsons  v.  Joseph,  93  Ala. 
lud.  Rev.  Stat.,  §  309 ;  Debs  v.  Dal-  403,  407 ;  Elyton  v.  Land  Co.,  id.  407. 
ton  (Ind.),  34  N.  E.  236.  In  Ala-  ^  paull  v.  Alaska  G.  &  S.  M.  Co.,  8 
bama  a  summons  in  garnishment  Sawyer,  420 ;  Bingham  v.  Rushing,  5 
may  be  in  any  county  where  levy  Ala.  403 ;  Pease  v.  Underwriters' 
can  be  made  in  attachment,  if  the  Union,  1  111.  A  pp.  287 ;  Hays  v.  Ly- 
defendant  resides  in  the  state.  Mc-  coming  Fire  Ins.  Co.,  99  Pa.  St.  621. 
Phillips  V.  Hubbard  (Ala.),  12  So.  3  s.  C.  R.  R.  v.  People's  Saving  In- 
711 ;  Herndon  v.  Givens,  16  Ala.  261 ;  stitution,  64  Ga.  18. 
Atkinson  v.  Wiggins.  69  id.  190 ;  ^  Duke  v.  R.  I.  Locomotive  Works, 
Home  Protection  v.  Richardson,  74  11  R.  I.  599;  Varnell  v.  Speer,  55  Ga. 
id.  468.  132 ;  Clark  v.  Chapman,  45  id.  486 ; 
1  Meints  v.  East  St.  Louis  Rail  Mill  Daniels  v.  Meinhard,  53  id.  359 ;  Claf- 
Co.,  89  111.  48 ;  Pease  u.  Underwriters'  Hn  v.  Iowa  City,  12  la.  284;  Ray- 
Union,  1  111.  App.  287;  Langford  n  mond  v.  Rockland  Co.,  40  Ct.  401 ; 
Ottumwa  Water  Power  Co.,  59  la.  Greer  v.  Rowley,  1  Pittsburg,  1 ;  Ken- 
283.  But  not  if  the  stock  has  been  nedy  v.  H.  L.  &  S.  Society,  38  CaL 
paid  for,  though  paid  in  property  151. 
less  valuable  than  the  stock.    Nicrosi 


CHAPTER  XIIL 

GARNISHMENT  PROCEEDINGS  BEFORE  THE  DISCLOSURE. 

I.  Nature  op  the  Proceeding §§  469-480 

II.  Requisites  for  the  Issue  of  the  Writ 481-48G 

III.  The  Interrogatories 487-491 

IV.  Service  and  Return 492-498 

V.  Default 499-502 

I.  Nature  of  the  Proceeding. 

§  469.  Definition. —  Garnishment  is  the  admonition  judi- 
cially given  to  the  attachment  defendant's  debtor  or  holder  of 
property,  warning  him  against  payment  or.  restoration  to  the 
defendant,  and  bidding  him  hold  the  property  or  credit  sub- 
ject to  the  order  of  court.  It  is  the  process  by  which  the  gar- 
nishee is  brought  into  court,  and  also  that  by  which  the  de- 
fendant's credit  or  property  is  attached  in  the  garnishee's 
hands.  Its  service  is  constructive  seizure  by  notice.^  It  is 
attachment  in  the  hands  of  a  third  person ;  and  this,  whether 
employed  in  the  incipiency  of  a  suit  or  to  aid  execution  after 
an  ordinary  judgment  against  the  defendant.-  It  does  not 
require  previous  demand  or  notice.^ 

iBeamer  v.  Winter,  41  Kan.  596.  535;  Moore  r.  Holt,  10  Grattan,  284; 

2JaflFray's  Appeal,  101  Pa.  St.  583;  Bigelow  v.  Andress,  31  111.  322;  Wal- 

Lush     V.    Galloway,    53    Wis.    164;  cott  v.   Keith,   2  Foster,  196;    Ren- 

Swett  V.  Brown,  5  Pick.  178 ;  Benton  necker  v.  Davis,  10  Richardson's  Eq. 

V.  Snyder,  22  Minn.  247 ;  Blaisdell  v.  289 ;  Wilder  v.  Weatlierhead,  32  Vt 
Ladd,  14  N.  H.  129 ;  Padden  v.  Moore,  765 ;  Johnson  v.  Gorhani,  G  Cal.  195 ; 
58  la.  703 ;  Kennedy  v.  Brent,  6  Cr.  Hicks  v.  Gleason,  20  Vt.  139.  In 
187;  Matthews  v.  Smith,  13  Neb.  178;  Wisconsin  the  garnishee  is  consid- 
Tindell  v.  Wall,  Busbee,  3 ;  Wells  v.  ered  a  party,  and  the  court  may  order 
American  E.xpress  Co.,  55  Wis.  23;  him  to  show  his  title  or  contract  be- 
Thompson  v.  Allen,  4  Stewart  &  Por-  fore  issue  joined  on  his  answer, 
ter,  184 ;    Watkins  v.  Field,  6  Ark.  Lush  v.  Galloway,  52  Wis.  164. 

891 ;  Byran  v.  Lashley,  13  Smedes  &  ^  Webster  Wagon  Co.  v.  Peterson, 

M.  284;  :Martin  v.  Foreman,  18  Ark.  27  W.  Va.  314:  Ham  v.  Peery,  39  111. 

249;   Tillmghast  v.  Johnson,  5  Ala.  341;  Fisher  r.  Hall,  44  Mich.  493. 
514;  Hacker  v.  Stevens,  4  McLean, 


338      GARNISHEE  PEOCEEDINGS  BEFORE  DISCLOSURE.       [§§  470,  471. 

§  470.  Personal  suit  against  garnishee. —  The  proceeding 
against  the  garnishee  can  be  explained,  and  all  its  peculiari- 
ties and  anomalies  presented,  more  easily  when  treated  as  a 
suit  at  law  than  when  described  as  something  different.^  It 
is  strikingly  dissimilar  to  all  other  suits  in  several  particulars, 
yet  it  is  a  judicial  cause  between  parties;  it  is  begun  by  a 
summons  or  its  equivalent,  and  it  results  in  a  judgment,  with 
all  the  other  characteristics  essential  to  a  law-suit.  In  this  pro- 
ceeding there  may  be,  and  there  often  is,  a  litigious  contest; 
w^itnesses  may  be  introduced  by  either  part}'^;  an  issue  of  fact 
may  be  tried  by  jury;  judgment  may  be  rendered  for  or 
against  the  garnishee;  judgment  against  him  may  be  exe- 
cuted; and  appeal  may  follow  judgment.  When  there  is  such 
litigious  contest,  the  existence  of  a  suit  is  readily  apparent ; 
but  when,  after  summons,  in  response  to  interrogatories,  the 
garnishee  answers  so  as  to  preclude  any  contest,  is  the  gar- 
nishment proceeding  a  suit?  Should  he  unequivocally  deny 
liability  and  obtain  his  discharge;  or  admit  it,  and  acquit  him- 
self by  paying  or  delivering  to  the  court;  or,  making  no  op- 
position, should  acknowledge  his  liability  and  submit  to  the 
order  of  court,  could  it  be  rightly  said  of  him  that  he  is  only 
a  witness?- 

§  471.  As  in  any  law-suit  whatever,  the  defendant  may 
decline  to  make  issue,  may  admit  all  that  the  plaintiff  alleges, 
may  comply  at  once  with  the  demand  and  avoid  any  litigious 
contest,  so  in  garnishment  proceedings,  the  party  against 
whom  the  process  is  directed  ma}^  avoid  making  any  issue  by 
acknowledging  all  that  the  plaintiff  alleges;  but  the  acknowl- 
edgment would  not  render  the  proceeding  in  the  latter  case 
different  from  that  in  the  former,  so  far  as  concerns  the  ques- 
tion whether  it  is  a  suit. 

If  the  proceeding  is  a  law-suit  it  is  such  from  its  incipiency, 

1  Citizens'  Bank  v.  Farwell,  56  Fed.  Co.,  19  Fed.  252;  Coda  v.  Thompson 

570,  573 ;  U.  S.  Rev.  Stat.,  §  914 ;  Kan.  (W.  Va.),  19  S.  E.  548;   Ringold  v. 

Gen.  Stat.  (1889),  §  4290 ;  Hey  ward  v.  Suiter,  35  W.  Va.  186. 

Manufacturing  Co.  (Ala.),  18  So.  837  ;  ^  Jones  v.  Roberts,  60  N.  H.   216; 

Cross  V.  Spillnian,  93  Ala.  170 ;  Ed-  Tliompson  v.  Silvers,  59  la.  670.     A 

mondson    i'.    De  Kalb,   51    id.    164;  wife   may   be    garnished    in   a  suit 

Treadway  v.  Treadway,  56  id.  391 ;  against  her  husband  but  cannot  be 

Harris  v.  Miller,  71  id.  26,  32 :  Mid-  made  a  witness  against  him. 
dleton  Paper  Co.  v.  Rock  River  Paper 


§  472.]  NATURE    OF    PKOCEEUIXG.  339 

and  not  merely  from  the  time  the  plaintiff  takes  issue  and 
traverses  the  answer.  Judgment  eventually  follows,  whether 
the  plaintiff's  interrogatories  be  answered  so  as  to  charge  or 
discharge  the  garnishee.  Up  to  the  point  where  issue  is  joined, 
the  garnishee  is  none  the  less  a  party  because  he  is  like  a  wit- 
ness; just  as  an  ordinary  defendant  is  none  the  less  a  party 
by  reason  of  the  service  of  interrogatories  upon  him  which  he 
is  bound  to  answer  as  though  he  were  a  witness. 

§  472.  The  attachment-defendant'' s  attitude. —  The  plaintiff 
virtually  sues  the  garnishee  for  a  debt  due  the  defendant,  by 
the  process  of  garnishment.  He  takes  the  shoes  of  the  latter 
and  asserts  the  rights  which  the  latter  has  against  a  third 
person,^  He  has  to  make  out  the  case  against  the  garnishee 
(where  he  is  permitted  to  do  so),  unless  the  indebtedness  to 
the  defendant  be  admitted  by  the  garnishee.  On  the  other 
hand,  the  defendant  to  the  main  action  does  not  sue  the  gar- 
nishee, though  the  garnishment  is  based  upon  the  obligation 
due  the  defendant.  Denying  indebtedness  to  the  plaintiff, 
and  resisting  payment,  he  is  averse  to  the  success  of  the  plaint- 
iff's side  action  against  the  third  person. 

Standing  in  the  defendant's  place,  the  plaintiff  can  have  no 
greater  rights  than  he,  had  the  garnishee  been  sued  by  the 
defendant.  On  the  other  hand,  if  the  garnishee  denies  indebt- 
edness, he  has  the  same  rights  of  defense,  and  no  more  nor 
less,  than  if  sued  by  his  creditor.  The  proceeding  may  there- 
fore be  called  a  suit.-  It  is  a  suit  at  law,^  and  may  be  tried 
by  a  jury.* 

1  Hallowell   v.   Leafgreen,   3  Colo.  v.  Pierson,  42  Ala.  370 ;  Thomas  i\ 

App.  22;    Railway  Co.  v.  Smeeton.  2  Hopper,  5  id.  442;  Massachusetts  X. 

id.  126;  Henderson  v.  Insurance  Co.,  Bankr.  Bullock,  120  Mass.  86;  Clarke 

72  Ala.  38 ;  Harris  v.  Miller,  71  id.  32 ;  v.  Farnum,  7  R.  I.  174. 

McAdams  v.  Beard,  34  id.  478 ;  Tim  v.  2  Zanz  v.  Stover,  2  New  Mex.  29 ; 

Frauklin.  87  Ga.  95 ;  Bates  v.  Forsyth,  Travis  v.  Tartt,  8  Ala.  574 ;  Moore  v. 

(i9  id.  365;  Farwell  v.  Chambers,  62  Stainton.  22   id.  831;  Jones  v.  New 

:Mich.  316 ;  Delacroix  v.  Hart,  24  La.  York  &  Erie  R.  R.  Co.,  1  Grant,  457 ; 

Ann.  141 ;  Griel  v.  Loftin,  65  Ala.  591 ;  Cross  r.  Spillman,  93  Ala.  170  ;  Thorn 

Jones    V.   Huntington,    9    Mo.    249 :  v.  Woodruff,   5   Ark.   55 ;  Malley  i'. 

Burnham  v.  Hopkinson,  17  N.  H.  259 ;  Altman,    14    Wis.    22 ;    Gorman    v. 

Treadwell  v.  Brown,  41  id.  12 ;  Hassle  Swaggerty,  4  Sneed,  560 ;  Smith  i: 

V.  Congregation,  35  Cal.  378 ;  Golden  Dickson,  58  la.  444 ;  Caldwell  r.  Stew- 


•5  Case  V.  Noyes,  16  Oreg.  539.  ^  Lehman  v.  Hudmon,  85  Ala.  135. 


3-iO       GARNISHEE  PKOCEEDINGS  BEFORE  DISCLOSURE.       [§§  473,  474:. 

§  473.  Garnisliee's  iwsition. —  The  garnishee,  however,  is 
not  a  party  to  the  suit  between  the  plaintiff  and  the  defend- 
ant: he  is  only  a  party  to  the  suit  against  himself  in  which 
the  plaintiff  urges  the  rights  of  the  principal  defendant  against 
the  garnishee.  The  fact  that  the  plaintiff  and  the  garnishee 
are  both  citizens  of  the  same  state  is  no  obstacle  to  the  re- 
moval of  an  attachment  suit  to  the  federal  court.^  It  is  the 
suit  between  the  attaching  creditor  and  his  debtor  that  is  thus 
removed,  because  one  of  these  parties  resides  in  another  state ; 
and  to  this  contest  the  garnishee  is  not  a  party  litigant.  At- 
tachment suits  are  thus  transferable  like  other  actions.^ 

It  is  held  that  the  garnishment  contest  between  the  plaint- 
iff and  the  garnishee  is  not  removable  apart  from  the  principal 
suit.^  Under  whatever  state  statute  it  may  be  brought,  and 
however  one  suit  may  differ  from  another  in  other  respects, 
the  garnishment  suit  never  stands  alone,  whether  it  is  united 
with  the  principal  cause  in  the  same  court  or  is  brought  sepa- 
rately in  a  different  court;  whether  the  process  against  the 
garnishee  is  by  summons  to  answer  interrogatories  or  by  any 
other  method ;  whether  in  the  principal  action  there  is  service 
effected  upon  the  defendant  or  notice  by  publication  to  the 
owner  of  the  assets  attached. 

§  474.  Garnisliment  suhsidianj  to  tlie  main  action. —  The 
plaintiff's  right  of  action,  the  effectiveness  of  the  judgment, 
and  the  protection  of  the  garnishee  from  subsequent  attack 
after  payment  under  judgment,  depend  upon  the  principal 
action :  its  rightful  institution,  rightful  judgment  thereon  and 
rightful  execution  of  the  judgment.  Whatever  dissolves  the 
attachment  releases  the  garnishee,  though  judgment  may  have 
been  rendered  against  him.  Reversal  of  the  judgment  against 
the  principal  defendant  on  appeal  will  virtually  reverse  the 
judgment  against  the  garnishee  though  not  appealed. 

Though  the  principal  judgment  may  hold  good  when  the 
auxiliary  one  is  reversed  the  converse  is  not  true.     In  no  case 

art,  30  id.  379 ;  Padden  v.  Moore,  58  2  Keith  v.  Levi,  1  McCrary,  343 ;  U. 

id.   703 ;    Tunstall    v.   Worthington,  S.  Eev.   Stat..  §  646.    See  Barney  v. 

Hempstead,  622;  Wells  v.   Am.  Ex.  Globe  Bauk,  5  Blatchf.  110;  Bates  v. 

Co.,  55  Wis.  23 ;  Webster  Wagon  Co.  Days,  11  Fed.  529. 

V.  Peterson,  27  W.  Va.  314.  ^  Pi-att  v.  Albright,  10  Bissell,  611. 
1  Cook  V.  Whitney,  3  Woods,  715. 


§  475.]  NATURE  OF  PROCEEDING.  341 

can  the  judgment  against  the  garnishee  stand  after  that  against 
the  principal  defendant  has  been  set  aside  or  reversed.^ 

Though  the  suit  against  the  garnishee  always  is  auxiliary, 
the  proceeding  against  the  garnished  property  or  credit  is  not 
always  auxiliary.  "When  the  attachment  debtor  is  not  served 
and  not  in  court,  and  is  notified  only  by  publication,  the  prin- 
cipal suit  is  the  proceeding  in  rem;  and  if  nothing  has  been 
attached  otherwise  than  in  the  garnishee's  hands,  tlie  process 
against  what  is  garnished  is  the  principal  suit.  Curiously- 
enough,  in  such  case,  the  personal  suit  against  the  garnishee 
becomes  auxiliary  to  that  against  the  thing  in  his  hands. 
Should  the  debtor  appear  at  a  late  stage  of  the  case,  he  would 
defend  against  the  attachment  of  his  property  or  interest  in 
the  hands  of  another,  while  the  garnishee  would  evidently 
occupy  a  secondary  place,  though  his  relation  would  not  be 
changed.  It  is  apparent  (whether  he  afterwards  appear  or 
not)  that  the  court's  jurisdiction  depends  upon  something 
having  been  seized  when  no  defendant  has  been  served.  And, 
if  nothing  has  been  attached  except  in  the  garnishee's  hands, 
it  is  such  attachment  that  has  given  the  court  jurisdiction; 
and,  without  it,  no  suit  could  be  maintained  against  the  gar- 
nishee. 

§  4Y5.  The  suit  lu/pothetical. —  The  suit  against  the  gar- 
nishee is  hypothetical.  The  right  of  action  depends  upon  the 
right  of  the  plaintiff  in  the  main  suit.  Jf  the  plaintiff  is  the 
creditor  of  the  principal  defendant,  and  has  a  right  of  action 
against  the  garnishee,  he  may  step  into  the  shoes  of  the  prin- 
cipal defendant  and  so  become  the  creditor  of  the  garnishee. 
In  other  words,  he  has  no  right  to  recover  of  the  garnishee 
unless  he  can  show  that  he  ought  to  be  subrogated  to  the 
right  of  the  garnishee's  creditor  and  empowered  to  sue  on 
that  creditor's  right.  In  yet  other  words,  the  attaching  cred- 
itor proceeds  against  the  garnishee  on  the  assum])tion  that 
what  is  due  by  the  latter  to  the  plaintiff's  debtor  may  be  di- 
verted, under  the  law,  to  the  payment  of  the  plaintiff;  and 

iLovejoy  v.   Albree,  33  Me.  414;  v.   Baker,  3  Ark.   509;  Mattliews  v. 

<Sreene  v.  Tripp,  11  R  I.  424;  Pierce  Sands,  29  Ala.  136;  Flash  v.  Paul.  id. 

V.  Carlton,  13  111.  358;  Whitehead  v.  141 ;  Edriugton  v.  Allsbrooks,  21  Tex. 

Henderson,  4  Sm.  &  M.  704;  Atche-  ISO;  Holek  v.  Insurance  Co.,  63  id. 

eon  V.  Smith,  3  B.  Mou.  502;  Desha  6G. 


342        GARNISHEE  PROCEEDINGS  BEFORE  DISCLOSURE.       [§§  476,  477. 

this  assumption  must  be  verified  b3^  judgment  before  his  right 
so  to  divert  the  payment  can  be  finally  settled.  In  all  the 
proceedings  before  final  judgment  in  the  principal  suit,  the 
plaintiff's  right  against  the  garnishee  is  therefore  hypothet- 
ical. Though  there  be  a  judgment  holding  the  garnishee 
chargeable  in  an  unqualified  decree,  it  is  understood  to  be  de- 
pendent upon  the  final  judgment  against  the  principal  defend- 
ant. He  is  held  chargeable  if  the  plaintiff  should  make  out 
his  main  case.  The  decree,  though  literally  positive  and  free 
from  all  contingency,  is  qualified  by  law  so  as  to  render  it 
dependent  upon  the  principal  judgment. 

§  476.  The  garnishee  is  sued  by  one  to  whom  he  owes 
nothing;  to  whom  he  is  under  no  obligation  whatever.'  He 
is  summoned  into  court  by  one  who  is  not  his  creditor,  that 
he  may  be  made  to  pay  to  a  stranger  what  he  owes  to  his  real 
creditor ;  or  to  deliver  what  property  he  possesses,  belonging 
to  his  principal,  into  the  hands  of  a  court  officer  at  the  de- 
mand of  a  stranger. 

He  is  sued  by  one  not  a  party  to  the  contract  by  which  he 
became  indebted,  and  is  required  to  perform  his  contract  ob- 
ligations by  violating  them ;  at  least  the  letter  of  the  contract 
is  disregarded  by  the  law  which  diverts  the  payment.  The 
demand  upon  him  is  that  he  pay  or  deliver  to  such  stranger, 
not  only  without  authority  from  his  creditor  or  principal  so 
to  do,  but  usually  contrary  to  the  desire  of  the  latter. 

The  law  comes  between  the  contracting  parties,  and,  by  pre- 
serving the  spirit  of  the  contract  while  disregarding  the  letter, 
requires  the  obligor  to  acquit  himself  of  his  duty  by  perform- 
ing it,  not  at  the  bidding  of  the  obligee  but  of  a  creditor  of 
his,  provided  such  creditor  sustain  the  allegations  of  his  suit. 
Pending  the  main  action  the  obligor  made  garnishee  is  re- 
quired to  stand  still,  holding  in  his  hands  the  property  or 
credit  therein  attached,  awaiting  the  judgment  of  the  court : 
being  meanwhile  protected  from  the  man  whom  he  really  owes 
or  whose  property  he  has  in  possession.   He  is  a  stake-holder.* 

§  477.  Conditional  subrogation. —  The  plaintiff  is  legally 
(though  hypothetically)   subrogated  to  the  right  of  action 

1  Hodges  V.  Graham,  25  La.  Ann.  365 ;  Bank  v.  Payne,  21  id.  380 ;  Mer- 
chants' Bank  v.  Haiman,  80  Ga.  624. 


§  478.]  NATUKE    OF   PROCEEDING.  343 

which  his  debtor  has  for  the  recovery  of  property  or  credits 
due  the  debtor.  He  sues  for  such  property  and  credits  in  his 
own  name,  but  upon  the  cause  of  action  acquired  by  such  legal 
subrogation.  He  can  recover  no  more  than  his  debtor  might 
have  recovered;  he  cannot  be  limited  to  less,  if  his  own  claim 
is  sufficient  to  cover  it. 

This  subrogation  of  a  right  of  action  is  the  more  remark- 
able when  considered  as  the  result  springing  from  an  ex  parte 
showing  on  the  part  of  the  plaintiff.  He  sues  his  debtor, 
makes  affidavit  of  the  requisite  facts;  and,  on  the  basis  of 
such  suit  and  showing,  his  right  of  action  stands  against  a 
third  person  who  owes  him  nothing  and  holds  no  property  of 
his.  Though  his  allegations  may  have  been  denied  by  the  de- 
fendant in  the  principal  suit,  his  right  of  action  against  the 
defendant's  debtor  or  property-holding  agent  will  be  main- 
tained by  the  court  till  the  decision  of  the  issues  involved. 

§  478.  The  subrogation  enables  the  plaintiff  to  reach  prop- 
erty and  credits  of  his  debtor,  in  third  hands,  which  rightfully 
ought  to  be  made  liable.  It  is  a  means  of  obtaining  the  ends 
of  justice  under  circumstances  which  would  favor  the  non- 
paying  debtor  Avere  there  no  such  subrogation.  There  is 
no  reason  for  exem])ting  from  execution  the  debtor's  credits 
or  his  property  in  third  hands ;  but  how  could  they  be  reached 
unless  the  plaintiff  be  subrogated  to  the  right  of  action  against 
the  debtor's  debtor  or  agent? 

The  law  finds  its  justification  in  its  rightful  purpose.  It 
violates  no  constitutional  provision  when  it  gives  the  creditor 
a  remedy  for  the  wrong  done  him  by  the  debtor  who  does  not 
pay  a  debt  due,  and  who  has  nothing  in  hand  out  of  which 
payment  can  be  extracted.  It  violates  no  constitutional  pro- 
vision when  it  creates  a  right  of  action,  upon  an  ex  parte 
showing,  against  the  debtor's  debtor,  even  though  the  sum 
claimed  by  the  plaintiff  may  be  yet  undue;  for  it  subserves 
the  ends  of  justice  between  all  the  parties,  promotes  the  gen- 
eral welfare  and  tends  to  circumvent  fraud  and  prevent  col- 
lusion between  the  defendant  and  the  garnishee. 

Xo  contract  can  be  violated,  no  i)romise  to  pay  absolved, 
no  interference  between  lawfully  contracting  parties  author- 
ized, by  the  legislator,  without  contravention  of  the  constitu- 
tion ;  and  if  the  subrogation  of  the  creditor  to  the  riorht  of 


34:4:      GARNISHEE  PROCEEDINGS  BEFORE  DISCLOSURE.       [§§  479,  480. 

action  wliicli  his  debtor  has  as  the  creditor  of  another  person, 
and  the  warning  against  the  jDayment,  to  the  rightful  cred- 
itor, of  a  debt  due;  and  the  suspension  of  all  operation  under 
a  valid  contract  till  the  issue  between  the  attachment  plaintiff 
and  the  attachment  defendant  be  decided,  violate  contract, 
absolve  from  payment  or  interfere  with  contracting  parties 
without  authority,  they  are  indefensible. 

§  479.  1)1  re»J.— While  the  suit  against  the  garnishee  is  in 
■personam^  it  is  yet  in  rem  in  relation  to  the  property  or  credit 
attached  in  his  hands.  The  presence  of  the  res  within  the 
court's  geographical  jurisdiction,  and  within  the  keeping  of 
the  garnishee  who  is  subjected  to  the  orders  of  the  court,  is 
essential  to  the  jurisdiction.  The  lien  created  is  upon  the 
thing  subjected  to  garnishment.  Though  the  proceeding  has 
been  called  quasi  in  rem^  it  is  in  personam  as  to  the  garnishee, 
and  a  limited  proceeding  in  rem  as  to  what  is  attached  in  his 
hands.  It  is  not  a  mere  resemblance  in  either  case.^  The 
court  gets  jurisdiction  of  the  garnishee  by  the  summons; 
whether  it  gets  it  over  any  res  depends  upon  his  liability  to 
the  defendant,  afterwards  disclosed.- 

§  480.  In  a  suit  against  a  non-appearing  non-resident  de- 
fendant notified  by  publication,  if  there  is  no  direct  attach- 
ment, the  jurisdiction  will  depend  upon  the  garnishment;  it 
will  depend  upon  the  attachment  of  debt  or  property  of  the 
defendant  in  the  hands  of  the  garnishee.^  The  res  must  be 
within  the  jurisdiction  and  under  the  control  of  the  court. 
Summoning  a  partner  does  not  hold  notes  of  his  in  the  hands 
of  a  copartner  then  out  of  the  state  though  surrendered  to 
the  defendant  by  the  absent  partner  before  his  return  to  the 
state." 

1  See  Sears  v.  Thompson,  73  la.  61 ;  2  Thornton  v.  Machine  Co.,  83  Ga. 

Montrose,  etc.  Co.  v.  Dodson,  etc.,  76  288. 

id.  172;  Todd  u  Mo.  Pac.  R.  Co.,  33  ^  Searing  v.  Benton,  41  Kan.  758. 

Mo.   App.  110;  Swallow  u.  Duncan,  A  garnishee  is  held  not  chargeable 

18  id.  622;    Bowen  v.  Pope,  26  111.  when  his  liability  is  in  another  state 

App.    233 ;    Lawrence  v.   Smith,   45  under   circumstances  such  that  his 

N.  H.  533 ;    Insurance  Co.  v.  Fried-  payment  to  the  garnishor  would  not 

man,  74  Tex.  56;  Sutherland  u.  Bank,  acquit  him.     Hamilton  v.  Rogers,  67 

78  Ky.  250;  Bates  v.  Railroad  Co.,  60  Mich.  135. 

Wis.  296;  Wheat  v.   Railroad  Co.,  4  4  Bowen  v.  Pope,  125  111.  28. 
Kan.  370. 


§  481.]  REQUISITES    FOR    ISSUE    OF    WRIT.  345 

The  immediate  effect  of  the  attachment  of  the  defendant's 
credit  or  goods  in  third  hands  is  not  to  extinguish  his  rights 
further  than  to  prevent  his  present  control  of  them;  and  not 
to  create  any  rights  in  the  plaintiff  further  than  to  secure  him 
the  ultimate  opportunity  of  making  his  money  out  of  such 
credits  or  goods  thus  subjected  to  legal  custody.  As  the  al- 
leged right  of  the  attaching  creditor  is  merely  in  the  thing, 
the  ownership  of  the  attached  property  is  not  divested  by  the 
attachment,^  nor  by  the  judgment  perfecting  the  attachment 
lien.  It  is  onl}''  where  seizure  is  in  vindication  of  a  right  to 
the  thing  that  judgment  is  conclusive  upon  the  title. 

II.  Requisites  for  the  Issue  of  the  Writ. 

§  481.  Affidavit. —  The  affidavit  in  the  principal  suit  usually 
suffices  for  garnishment,  but  in  several  states  the  plaintiff  is 
required  to  swear  that  the  person  to  be  garnished  has  prop- 
erty of  the  defendant  or  is  indebted  to  him.  The  oath  is  good 
if  the  plaintiff  or  affiant  swears  that  he  believes  or  has  reason 
to  believe  that  such  person  thus  holds  or  owes.  In  all  the 
states  there  must  be  affidavit  for  garnishment,  if  the  suit 
against  the  defendant  is  an  ordinary  one  for  debt,  and  the 
garnishment  is  subsequently  sued  out  to  aid  it;  and  then  all 
the  necessary  allegations  against  the  defendant  must  be  sworn, 
as  set  forth  in  the  chapter  on  the  attachment  affidavit. 

One  affidavit  may  be  filed  for  the  garnishment  of  several 
persons  severally  liable,  though  the  service  and  all  following 
proceedings  must  be  separate  against  each.^  The  person  to 
be  garnished  cannot  waive  the  affidavit,  since  it  is  necessary 
to  the  jurisdiction.^  An  affidavit  for  garnishment  is  for  at- 
tachment in  the  hands  of  a  third  person :  so,  on  a  motion  to 
discharge  garnishees,  based  on  the  alleged  falsity  of  the  "affi- 
davit of  attachment,"  evidence  was  received  to  prove  the  affi- 
davit for  garnishment  false.  The  two  terms  were  deemed 
equivalent  for  the  purposes  of  the  motion.* 

1  Scarborough  v.  Malone,  67  Ala.  Young,  52  Midi.  476.  See  Curtis  v. 
570.  Henrietta  Bank,  78  Tex.  260. 

2  State  Savings   Bank  v.  Hosmer,        ^Smitli  ?-.  Conrad,  23  Oreg.  206. 

95  Mich.  IQQ,  distinguishing 'QaW  V.        *  Cox  Mauuf.  Co.  r.  August,  51  Kan. 

59. 


34G       GARNISHEE  PKOCEEDINGS  BEFORE  DISCLOSURE.       [§§  482-484. 

The  affidavit  must  be  filed  before  the  summons  of  the  gar- 
nishee, showing  good  statutory  ground  against  the  principal 
defendant.^ 

§  482.  Bond. — When  the  main  suit  is  ordinary,  it  is  neces- 
sary that  the  defendant  be  secured  by  bond  if  garnishment 
proceedings  to  aid  it  are  subsequently  sued  out.  When  the 
ancillary  proceeding  is  separate  from  the  main  action,  bond 
should  be  filed.^ 

§  483.  Wi'it. — A  "  writ  of  garnishment "  is  issued  in  some 
states,  while  in  others  garnishees  are  summoned  under  the 
writ  of  attachment  and  served  with  interrogatories  propounded 
by  the  plaintiff;  or  a  copy  of  the  writ  is  left  with  the  gar- 
nishee with  notice  that  what  he  holds  belonging  to  the  de- 
fendant and  what  he  owes  him  are  thus  attached  in  his  hands. 

When  a  writ  of  garnishment  is  necessary,  though  attach- 
ment has  already  been  issued  against  the  defendant,  the  ap- 
plicant must  state  the  grounds  for  it  and  also  aver  that 
attachment  has  been  issued.^  The  names  of  the  persons 
to  be  garnished  are  set  forth  in  the  writ,*  where  required, 
though  the  practice  is  in  some  states,  for  the  attaching  cred- 
itor to  furnish  the  sheriff  with  the  names  of  the  persons  to  be 
garnished,  and  he  proceeds  to  execute  the  writ  in  conformity 
to  statute.^ 

§  484.  The  names  of  the  garnishees  need  not  be  in  the  writ 
unless  the  statute  requires  it.^  But  the  statute  does  require  it 
in  some  states,  as  in  Kew  Hampshire.^  And  when  the  writ  is 
served  by  reading  it  to  the  garnishee,  the  inclusion  of  his  name 
is  essential.^ 

The  writ  should  require  the  garnishee  to  answer  in  writing, 
according  to  several  statutes;  and  in  Mississippi  it  is  insuf- 
ficient when  it  does  not  contain  a  command  to  that  effect,  as 

1  State  V.  Duncan  (Neb.),  56  N.  W.  3  Scurlock  v.  Gulf,  77  Tex.  478. 
214.  4  Pratt  v.  Sanborn,  63  N.  H.  115. 

2  Gregory   v.   Clark,   73    Ga.    54;3 ;  •-'  Norvell  v.  Porter,  62  Mo.  309.     See 
Burton  v.  Wynne,   55   id.    615.      In  Miss.  Code.  1892,  §§  134-36,  2131. 
Georgia  the  affidavit  and  bond  must  6  McCambridge  v.  Barry,  29  W.  N. 
be  filed  before  the  issue  of  summons  C.  (Pa.)  93. 

to  the  garnishee  (Ga.  Code,  §  3536),  ^Pratt  v.  Sanborn,  63  N.  H.  115; 

though  they  need  not  be  presented  to  Smith  u  Hill,   45   id.  403 ;    Bank  v. 

the  magistrate  issuing  the  summons.  Goodall,  41  id.  81. 

Pratt  V.  Young,  90  Ga.  39.  »  Senimes  v.  Patterson,  65  Miss.  6. 


§§  485,  486.]  REQUISITES    FOR    ISSUE    OF    WKIT.  34Y 

well  as  for  the  disclosure  of  indebtedness  up  to  the  time  of  the 
answer.^ 

§  485.  The  plaintiff  prepares  and  files  the  interrogatories  to 
be  served  on  the  garnishees.-  The  amount  claimed  should  be 
inserted,  though  that  is  not  everj^where  material;  it  is  not 
necessary  in  Texas.''  It  may  be  important  as  showing  juris- 
diction. If  the  claim  against  the  defendant  is  such  in  amount 
as  to  come  within  the  court's  jurisdiction,  the  writ  against  the 
garnishee  will  hold  though  the  debt  he  owes  the  defendant  be 
less  than  sufficient  to  come  within  it.^ 

When  the  writ,  affidavit  and  bond  have  been  lost  and  the 
loss  is  not  explained,  the  garnishment  cannot  be  consummated.-^ 

The  writ  should  be  properly  entitled  with  the  name  of  the 
court  and  be  duly  prepared  in  all  other  respects.  It  should 
bear  date.  If  its  date  should  be  conflicting  —  the  day  of  the 
month  not  conforming  with  that  of  the  week  —  the  former  con- 
trols.^ The  writ  (or  writ  and  summons  when  there  are  both) 
should  show  in  what  suit  it  is  issued.'  It  should  be  signed  by 
the  clerk  of  court.'^  In  Mississippi,  where  a  clerk  of  court  may 
include  the  summons  to  the  garnishee  in  a  writ  of  attachment, 
he  may  do  so  in  an  alias  writ.^ 

§  486.  Notice  to  the  defendant. —  It  is  necessary  that  the  de- 
fendant be  notified  of  the  garnishment  in  order  that  he  may 
be  bound  by  the  proceeding.'"  If  a  third  person,  other  than 
the  garnishee,  has  received  no  notice  of  such  a  proceeding,  and 
his  property  or  debts  due  him  are  sought  to  be  attached  or 
subjected  to  garnishment  as  belonging  to  the  principal  defend- 
ant, he  would  not  be  bound  or  affected  in  his  rights.^' 

While  a  judgment  against  a  garnishee  would  be  void  if  no- 
tice neither  by  service  nor  publication  had  been  given  to  the 

1  Acme  Lumber  Co.  v.  Shoe  Co.,  70  ^  state  Savings  Bank  v.  Hosmer,  95 

Miss.  91.  Mich.  100 ;  Ingersoll  v.  Kirby,  Walk. 

2 Smith  V.  Conrad,  23  Oreg.  206;  Ch.  27. 

Case  V.  Noyes,  16  id.  539.     See  same  ^  Johnson  t\  McCutchings,  43  Tex. 

title,  16  id.  329.  553 ;  Lewis  v.  Woodfoik,  58  Tenn.  25 ; 

3  Curtis  V.  Henrietta  Bank,  78  Tex.  Peak  v.  Buch,  59  id.  71. 

260.  8  Sheppard  v.  Powers,  50  Ala.  377. 

4  Moore  v.  Kelly,  47  Ark.  219;  9  Miss.  Code  of  1892, 4;§  134-36, 213  L 
Mansf.  Dig.,  §^  342,  .347.    .  lOAVise    v.   Rothschild,   67    la.   84; 

5  Blankenship  v.  Moore  (Tex.),  16  Axtell  r.  Gibbs,  52  Mich.  G40. 

S.  W.  780.  11  Wilson  n  Groelle,  83  Wis.  530. 


348       GARNISHEE  PROCEEDINGS  BEFORE  DISCLOSURE.       [§§  487,  488. 

attachment  defendant  ^  (unless  waived  or  rendered  unneces- 
sary by  appearance),^  yet  the  process  of  garnishment  ma}'"  be 
served  upon  the  garnishee  he/ore  the  notice  is  made  upon  such 
defendant,  when  the  latter  can  only  be  reached  by  publication, 
for  the  garnishment  is  really  a  proceeding  in  rem  against  the 
property  in  the  hands  of  the  garnishee.^ 

III.  The  Interrogatories. 

§  487.  Their  character. —  The  questions  filed  for  service  on 
the  garnishee  should  be  confined  to  the  purpose  of  ascertain- 
ing his  liability  to  the  defendant.'*  They  must  not  be  imper- 
tinent, or  unnecessarily  harassing,  or  calculated  to  expose 
such  business  relations  between  the  person  addressed  and  his 
cre<:litor  as  the  exigencies  of  the  occasion  do  not  require  to  be 
exposed.  The}'  must  not  be  such  as  to  entrap  the  garnishee 
into  admissions  which  he  would  not  be  required  to  make  were 
questions  plain  and  readily  apprehensible;  they  must  not  tend 
to  make  him  criminate  himself;  they  must  not  be  such  as  to 
deprive  him  of  any  just  ground  of  defense  against  his  own 
creditor  in  case  of  a  subsequent  suit.  They  should  not  be 
unnecessarily  prolix  or  repetitious.  They  should  contain  all 
that  the  attaching  creditor  wishes  to  ask,  so  as  to  leave  no  oc- 
casion for  supplemental  interrogatories;  but  there  may  be 
supplemental  ones,  under  leave  of  court.  If  the  first  set  have 
not  been  served,  they,  by  leave,  may  be  withdrawn  and 
amended ;  or,  if  served,  supplemental  questions  may  be  pro- 
pounded. There  is  good  ground  for  application  to  file  sup- 
plemental interrogatories  if  new  facts  have  come  to  the  knowl- 
edge of  the  interrogator  after  the  filing  of  the  first. 

§  488.  Questions  should  he  specific. —  To  effect  their  object,  to 
ascertain  whether  the  person  addressed  is  really  liable  as  a 
garnishee  to  the  amount  of  the  debt  claimed  of  the  defendant 
or  less,  to  avoid  the  necessity  of  applying  for  permission  to 
file  amended  or  supplemental  questions,  the  interrogatories 

1  Hinds  V.  Miller,  53  Miss.  845 ;  may  be  served  upon  the  garnishee 
Martin  v.  Central  R.  Co.,  50  Hun,  347.  without  notice  to  the  principal  de- 

2  Everdell  v.  Sheboygan,  etc.  R.  R.  fendant.  Phillips  v.  Germon,  43  la. 
Co.,  41  Wis.  395.  101. 

3  It  was  held  in  Iowa  that,  in  a  ^  State  N.  Bank  v.  Boatner,  39  La. 
proceeding  by  garnishment,  process  Ann.  843. 


§  489.]  I^■rERROGATOKIES.  349 

should  be  full,  frank,  searching,  pointed,  respectful,  pertinent 
and  not  susceptible  of  being  evaded.  They  should  be  such  as 
to  draw,  if  possible,  even  from  a  double-dealing  man,  the  truth 
respecting  his  indebtedness  to  the  defendant,  or  his  relation 
to  the  defendant  as  the  custodian  of  property  liable  to  gar- 
nishment. They  should  be  sufficiently  incisive,  so  as  to  lay 
bare  all  the  facts  within  the  bounds  circumscribing  the  gar- 
nishee as  a  mere  stakeholder  disinterested  as  to  whom  he  may 
be  called  upon  to  pay  or  to  deliver;  but,  as  before  remarked, 
they  should  not  go  beyond  those  bounds  to  render  the  gar- 
nishee worse  off  than  he  was  before.  They  may,  within  those 
bounds,  cut  into  transactions,  facts  and  various  matters  tend- 
ing to  bring  out  the  one  essential  fact  of  legal  responsibility 
as  garnishee ;  for,  as  the  garnishee  is  not  supposed  to  know 
the  exact  boundary  of  his  rights  and  exemptions  when  the 
circumstances  are  complicated,  the  bringing  out  of  all  the 
particulars  may  be  of  great  importance  to  enable  the  court  to 
understand  and  decide  whether  or  not  he  is  chargeable. 

§  489.  The  interrogatories  should  not  be  general  as  to  the 
liability  of  the  garnishee.  They  should  show  whether  he  is 
meant  to  be  charged  as  the  holder  of  the  defendant's  prop- 
erty, or  as  the  debtor  of  the  defendant,  or  both ;  however  the 
case  may  be,  they  should  cover  the  necessar}^  ground.^  If 
asked  whether  he  has  goods  or  chattels  of  the  defendant  sub- 
ject to  execution,  the  garnishee  would  not  be  bound  to  state 
that  he  owes  the  defendant,-  and  might  render  himself  liable 
to  the  latter  after  having  paid  such  debt  into  court,  by  such 
voluntary  statement.  So,  when  asked  whether  he  is  indebted, 
he  should  voluntarily  disclose  that  he  held  projierty,  he  might 
afterwards  be  subjected  to  account  for  it  to  the  defendant. 
The  plaintiff  should  ask  all  that  he  wishes  to  know,  within 
legal  limits,  concerning  whatever  the  garnishee  has  in  posses- 
sion belonffino;  to  the  defendant  and  what  he  owes  to  the  de- 
fendant.  If  there  are  two  joint  defendants,  the  question 
whether  he  owes  them  would  not  cover  his  indebtedness  to 
one.' 

1  Botsford  V.  Simmons,  32  Mich.  Compare  ^lelton  v.  Lewis,  74  Tex. 
352.  411. 

-'Kiggins   V.   Woodke,   78  la.    34.        3, ^f^^,  Farwell  r.  Chambers,  62 Mich. 

316;  Ford  v.  Detroit  Co.,  50  id.  358. 


350       GAKNISHEE  PROCEEDINGS  BEFORE  DISCLOSURE,       [§§  490,  491. 

If  a  corporation,  such  as  a  railroad  company,  is  garnislied, 
the  interrogatories  shoukl  not  ask  the  officer  or  agent  upon 
whom  they  are  served  what  lie  owes  to  the  defendant,  since 
his  answer  would  not  be  binding  upon  the  compan}'-.^ 

§  490.  Time  covered. —  The  questions  may  cover  the  time  of 
service,  the  time  of  answering,  and  subsequent  time  where  the 
statute  authorizes  it,  so  as  to  provoke  answers  exposing  the 
relations  of  the  garnishee  as  the  debtor  or  property-holding 
agent  of  the  defendant  at  any  or  all  of  those  times,^  If  only 
required  to  answer  as  to  the  time  when  he  was  served  with 
process,  the  garnishee,  if  he  had  nothing  then  and  so  answers, 
may  afterwards  become  indebted  to  the  defendant,  or  receive 
money  for  him  and  pay  him,  or  receive  goods  for  him  and 
deliver  them  to  him,  with  impunity.  Or,  the  garnishee  might 
pay  or  deliver  to  another  creditor  of  the  defendant.  So  also 
when  there  is  no  law  for  covering  subsequent  time.^  Should 
the  attaching  creditor  sue  out  a  second  writ  of  garnishment, 
or  amend  his  interrogatories  and  have  them  reserved,  so  as  to 
cover  the  subsequent  time,  he  would  be  too  late,  if  meanwhile 
the  garnishee  had  divested  himself  of  his  indebtedness  or  pos- 
session of  attachable  property/  There  is  no  necessity  for 
amending  the  pleading  or  filing  a  supplemental  complaint, 
when  the  garnishee's  answer,  though  denying  possession  of 
the  defendant's  property,  discloses  facts  which  show  that  he 
is  in  possession  of  it;^  or  makes  disclosure  from  which  his  in- 
debtedness to  the  defendant  may  be  inferred,^ 

§  491.  Upon  the  principle  that  the  third  person  holding  the 
funds  of  a  defendant  is  disinterested  as  to  whom  he  pays  if 
he  gets  acquittance,  the  practice  is  liberal  towards  amendments 
made  by  the  attaching  creditor,  even  after  interrogatories 
have  been  answered  by  the  garnishee.  This  has  gone  so  far 
that  when  a  garnishee  had  denied  indebtedness  to  the  defend- 
ant but  admitted  owing  the  firm  to  which  the  defendant  be- 
longed, his  answers  were  held  to  bind  him  after  the  plaintiff 

1  Varnell  u  Speer,  55  Ga.  132.  *  Daniels  v.   Mienhard,  53  Ga.  359. 

^  N.  O.  M.  &  C.  R.  R.  Co.  V.  Long,  ^  Farmers'   &  IMechauics'   Bank  r. 

50  Ala.  498 ;  Bliss  v.  Smith,  78  III.  Welles,  23  Minn.  475. 

359  ;  Cowdry  t.  Walker,  50  N.  H.  533.  6  Hobson    v.   Hill,   87    Mich.    187 ; 

3  Hoffman  v.   Fitzwilliam,   81   111.  Cornish  v.  Russell,  32  Neb.  397 ;  Milli- 

521.  ken  r.  Mannheimer,  49  Minn.  521. 


§  492.]  SERVICE    AND    KETL'RN,  351 

had  subsequently  chanf^ecl  his  pleadings  and  made  the  firm 
defendant.^  Such  practice,  however,  is  not  to  be  commended. 
The  proper  course  is  to  issue  a  second  set  of  interrogatories 
and  get  the  answer  that  the  indebtedness  is  to  the  defendants 
as  then  in  court.  AVhere  no  other  interests  had  intervened,  as 
in  the  case  just  cited,  no  evil  could  result  from  the  practice, 
but  what  would  have  been  the  state  of  things  if  some  other 
creditor  had  meanwhile  attached  the  debt  by  garnishment,  as 
due  to  the  firm?  Clearly  the  answer  to  the  first  interrogatories 
would  not  have  bound  the  garnishee.  Or,  what  if  the  gar- 
nishee had  paid  the  firm  immediately  after  answering  before 
there  was  any  defendant  but  a  single  member  of  the  firm? 
His  payment  would  have  been  legal,  regular  and  sufficient  to 
discharge  him  of  all  liability.  The  right  practice  is,  in  case  of 
the  joinder  of  new  parties  in  order  to  reach  a  credit  of  the 
firm  in  the  hands  of  a  third  person,  to  renew  the  garnishment. 

IV.  Service  and  Return. 

§  492.  No  waiver. —  The  garnishee  has  no  right  to  accept 
or  waive  service.-  He  has  no  right  to  thus  aid  the  plaintiff  to 
the  prejudice  of  the  defendant,  his  own  creditor  or  principal, 
as  the  case  may  be.  His  interest  should  deter  him  from  the 
voluntary  acceptance  of  service,  since  he  might  afterwards  be 
]irecluded  from  setting  up  the  payment  of  the  debt  under 
judicial  order  in  the  attachment  proceeding,  should  his  own 
creditor  afterwards  sue  him  for  the  same  debt.  However, 
should  he  waive  service,  and  voluntarily  appear  in  court  and 
answer,  the  garnishment  would  hold  good  against  himself.* 
It  would  also  hold  good  in  case  he  acknowledged  indebted- 
ness to  the  defendant,  or  possession  of  his  property,  for  all  the 
]iurposes  of  the  garnishment  so  far  as  the  plaintiff  is  con- 

1  Sullivan  v.  Langley,  128  Mass.  235.  Hebel  v.  Amazon  Ins.  Co.,  33  Mich. 

-  McCormick,  etc.  Co.  v.  James,  84  400.     But  it  was  held  that  he  may 

Wis.  600 ;  Edler  v.  Hasche,  67  id.  653 ;  when  no  rights  of  opposing  creditors 

Gates  V.  Tusteu,  89  Mo.  13 ;  Schindler  are  involved.     Freeman  v.  Miller,  51 

?•.  Smith,  18  La.  Ann.  476 ;  Nelson  r.  Tex.  443.     See  Cahoou  v.  Morgan,  38 

Sanborn,  64  N.  H.  310 ;  Rowland  v.  Vt   234 ;    North    Central   R.    Co.  v. 

Jenal  (Minn.),  56  N.  W.  581 ;  Phelps  Ryder.  45  .Md.  24. 

V.  Boughton,   27   La.  Ann.  592;  Ep-  ^National  Bank  of  Commerce  v. 

steiu   i\  Salorgne,    6   Mo.  App.  352;  Titswortli,  73  111.  591. 


352  GARNISHEE    PROCEEDINGS    BEFORE    DISCLOSURE.         [§  493. 

cerned,  if  the  defendant  had  consented  to  such  acceptance  of 
service.'  In  Texas,  if  no  third  party  is  interested,  the  accept- 
ance of  service  by  the  garnishee  binds  the  defendant.^  Gen- 
erally, the  voluntary  appearance  and  answer  of  a  garnishee, 
shown  by  the  record,  does  not  support  jurisdiction:  so  the 
record  cannot  be  pleaded  against  third  parties.^  He  may 
know  that  a  summons  for  him  has  been  issued,  but  such  knowl- 
edge would  not  warrant  his  response  before  service.* 

Mere  irregularities  of  service  are  waived  by  the  answer ;  ^ 
but  essentials  cannot  be ;  even  formalities  cannot  be  waived 
in  behalf  of  the  defendant  without  authorization.^ 

§  493.  Methods  of  service. —  Since  service  of  the  writ  and 
interrogatories  cannot  be  accepted  by  the  garnishee,  they 
must  be  served  upon  him  by  the  officer  intrusted  with  the 
duty.  To  effect  this,  the  officer  must  first  have  the  writ.' 
Armed  with  this,  he  must  pursue  the  course  pointed  out  by 
statute,  which  varies  in  different  states,  and  according  to  the 
object  sought :  whether  a  debt  or  a  judgment  is  to  be  sub- 
jected to  the  garnishment ;  whether  the  garnishment  is  in  the 
first  stage  of  the  case  or  is  to  aid  execution.^  Sometimes  spe- 
cial notice  is  necessary,  as  when  a  deposited  note  is  to  be 
reached  by  garnishing  a  bank,  when  the  note  does  not  belong 
to  the  depositor,  as  in  Colorado.'' 

The  officer  cannot  directly  attach ;  that  is,  he  cannot  take 
the  property  from  the  garnishee.'" 

When  property  known  to  be  in  the  possession  of  the  person 
to  be  garnished  is  to  be  specially  attached  in  his  hands,  he 
may  be  served  by  having  a  certified  copy  of  the  writ  left  with 
him,  with  a  notice  specifying  the  property  attached ; ''  and 
these  acts  should  be  shown  in  the  return.  Ordinarily,  what 
property  or  credit  is  attached  by  the  service  cannot  be  shown 

1  Nelson   v.  Sanborn,  64  N.  H.  310.  ^  Donald  v.  Nelson,  95  Ala.  111. 

■^  Selman  v.  Orr,  75  Tex.  528.  ^Dore  v.  Dougherty,  72  Cal.  232. 

3  State  V.  Duncan  (Neb.),  56  N.  W.  »  First  N.  Bank  v.  Leppel,  9  Colo. 
214;  McCormick,  etc.  Co.  u  James,  594. 

84  Wis.  609.  i«  Northfield,  etc.  Co.  v.  Shapleigh, 

4  Harrell  v.  Mexico,  etc.,  73  Tex.  24  Neb.  635 ;  Reed  v.  Fletcher,  24  id. 
612.  435. 

^Lupton  V.  Moore,  101  Pa.  St.  318;  "Lewis  v.  Birdsey,  19  Oreg.  164; 
Moody  n  Alter,  12  Heisk.  142.  Spaulding  v.   Kennedy,   6    id.    208; 

eKeppel  v.  Moore,  66  Mich.  292.  Sprague  v.  Clark,  41  Vt  10. 


§  -il'-i.]  SERVICE  A\D  RETURN.  353 

or  described  in  the  return,  except  in  states  W'here  the  gar- 
nishee gives  a  certificate  to  the  sheriff  disclosing  what  attach- 
able property  he  holds,  or  what  debts  he  owes  to  the  defend- 
ant.    Whatever  is  definitely  attached  should  be  returned.^ 

§  494.  The  return  should  show  whether  the  summons  and 
interrogatories  have  been  served  on  the  person  to  whom  they 
were  directed.  If  the  garnishee  is  a  corporation,  the  return 
should  show  upon  what  officer  or  agent  the  service  Avas  made.^ 
This  is  important,  if  the  validity  of  the  service  is  brought  into 
question. 

The  garnishee  may  fail  to  get  a  summons  left  for  him  at 
his  residence,  or  fail  to  understand  one  read  to  him  by  way 
of  service,  or  may  otherwise  receive  summons  without  really 
knowing  it.  Under  such  circumstances,  should  the  sheriff 
make  return  that  he  had  summoned  the  garnishee,  and  there- 
after the  case  go  on  to  judgment,  it  seems  that  the  garnishee, 
who  has  ignorantly  and  innocently  paid  to  the  defendant 
meanwhile,  will  still  be  bound  to  the  plaintiff.''  But  it  has 
been  held  that  service  of  a  writ  of  garnishment  only  two  days 
before  the  return  term  will  not  support  a  judgment  against 
the  garnishee,  when  the  service  was  not  personal.* 

In  Missouri,  where  it  is  essential  to  make  declai'ations  to 
the  garnishee,  the  failure  of  the  sheriff  to  show  compliance 
with  that  duty,  in  his  return,  is  not  cured  by  the  answer  of 
the  garnishee  admitting  the  possession  of  the  funds  sought  to 
be  attached;  and  such  admission  will  not  justify  judgment.* 
In  that  state  a  return  which  merely  shows  that  the  garnishee 
has  been  summoned  gives  no  jurisdiction  over  the  res  or  over 
the  defendant." 

1  Fenglin  t'.  Cairo  &  St.  Louis  R  R.  <  Alexander  v.  Lloj-d  and  Insur- 
Co.,  6  Mo.  App.  580.    See  Norveli  v.     ance  Co.,  70  Miss.  6C2. 

Porter,  63  Mo.  309.  5  Connor  v.  Pope,  18  Mo.  App.  86; 

2  Northern  Cent.  R.  R,  v.  Rider,  45  Norville  v.  Porter,  62  Mo,  310 ;  Keane 
Md.  24.  V.  Bartliolow.  4  Mo.  App.  507 ;  Brecht 

3  Hite  V.  Fislier.  70  Ind.  231 ;  Clen-  v.  Corby.  7  id.  300. 

eay  v.  The  Junction  R.  R.  Co.,  26  id.        « Todd  v.  ]\Iissouri  Pac.  R.  Co.,  33 

375;  Ryan   i'.  Burkham,   42  id.  507;  Mo.  App.  110;  Dunn  i*.  Missouri  Pac. 

Rowell  V.  Klein,  44  id.  290 ;  Splahn  R.  Co.,  45  id.  29.     See  Hayden  v.  Na- 

V.  Gillespie,  48  id.  397.  tional  Bank,  130  N.  Y.  140;  Mosher 


V.  Banking  House,  6  Mo.  App.  599. 


23 


854      GARNISHEE  PROCEEDINGS  BEFORE  DISCLOSURE.       [§§  495,  496. 

§  495,  Void  service. —  "  Service  "  out  of  the  state  is  void 
Avhen  the  court  has  simply  ordered  service,^  meaning  personal 
service,  which  cannot  be  legally  effected  beyond  the  jurisdic- 
tion. Service  outside  of  the  state  is  no  better  than  notice  by 
publication;  that  is,  it  is  not  service  which  brings  anybody 
into  court.  And  it  is  held  that  acceptance  of  service  there 
has  no  greater  effect.-  A  return  that  the  writ  was  served  on 
an  agent  of  a  foreign  corporation  is  insufficient  when  the  stat- 
ute requires  such  corporation  to  have  a  resident  on  whom 
service  is  to  be  made,  if  the  agent  is  not  within  the  requisi- 
tion.^ And  when  the  service  is  insufficient,  the  court  acquires 
no  jurisdiction  over  the  debt  sought  to  be  attached  in  the 
garnishee's  hands,  though  he  appear.* 

No  jurisdiction  is  acquired  by  the  service  of  garnishment 
on  a  bank  holding  pledged  bonds  of  a  foreign  corporation  be- 
longing to  a  non-resident  defendant  who  has  not  been  legall}'' 
served  or  notified.^  Under  a  Connecticut  statute,  which  makes 
the  garnishment  of  a  foreign  debtor's  agent  sufficient  notice 
to  the  debtor,  it  was  held  that  a  copy  of  the  writ  describing 
property  need  not  be  served  on  the  defendant's  agent  in  the 
state.®  In  Wisconsin  proceedings  against  a  garnishee  have 
been  considered  as  against  the  defendant,  too,  as  a  party, 
though  he  had  not  answered.'' 

Garnishment  does  not  dispense  with  service  upon  the  debtor 
resident  or  publication  to  the  debtor  non-resident,^  though,  in 
the  latter  case,  it  necessaril}'^  must  precede  publication,  since 
otherwise  there  would  be  nothing  on  which  to  base  jurisdic- 
tion so  as  to  warrant  any  publication  at  all. 

§  496.  Return,  as  to  time  of  service. —  In  most  of  the  states 
garnishments  rank  in  the  order  of  service,  and  it  is  therefore 
important  that  the  return  should  show  the  exact  time  of  serv- 
ice when  there  is  competition.^     In  Pennsylvania  no  fraction 

1  Levy  V.  Miller,  38  Minn.  526.  Comjmre    McCaun    v.   Randall,    147 

•J  Smith  V.  Chilton,  77  Va.  535.  Mass.  81. 

3  Gates  V.  Tusten,  89  Mo.  13.  6  Fuller  v.  Foote,  56  Ct.  341. 

*  Masterton  v.  Missouri  Fac.  R.  Co.,  ^  Mygatt  v.  Burton,  74  Wis.  352. 

20  Mo.  App.  653;  Fletcher  v.  Wear,  »  Martin  v.  Central  R.  Co.,  50  Huu, 

81  Mo.  524;  Haley  v.  Railroad,  80  id.  347. 

112;  McDonald  v.  Moore,  65  la.  171.  »  Tufts  v.  Carradine,  3  La.  Ann.  430. 

5  Tweedy  v.   Bogart,   56    Ct.   419. 


§§  407-499.]  DEFAULT.  355 

of  a  day  is  considered  in  garnishments,^  and  rank  is  not  fixed  by 
the  order  of  service.^  Where  it  is  so  fixed,  the  importance  of 
returning  the  true  and  exact  time  is  seen  when  we  reflect  that 
the  sheriff  cannot  amend  after  the  interests  of  a  second  gar- 
nishor, or  of  any  one,  would  be  affected  by  the  change.' 

§497.  Time  of  return. —  The  return  must  be  made  during 
the  life  of  the  writ  —  before  its  time  has  expired ;  otherwise 
the  crarnishment  will  not  hold.^ 

§  498.  Time  to  set  return  aside. —  If  the  garnishment  return 
is  sufficient  on  its  face,  application  to  set  it  aside  should  be 
made  before  answering  the  interrogatories.^  It  cannot  be  as- 
sailed collaterall}''  unless  it  is  void.** 

Y.  Default. 

§  499.  Wliy  and  when  rendered. —  Should  the  garnishee  fail 
to  respond  to  the  summons  served  he  may  be  defaulted.  The 
interrogatories  may  be  taken  pro  confesso?  They  may  be  so 
taken  even  if  he  has  appeared  and  failed  to  answer  them — • 
even  if- he  has  filed  a  general  deniah^  His  silence  is  deemed 
assent,  if  the  questions  are  such  that  answers  favorable  to  the 
interrogator  would  make  out  the  chargeabilit}^  of  the  garni- 
shee. He  cannot  complain  of  the  legal  result  of  his  own 
laches.  Garnishment  is  a  method  allowed  by  law  to  facilitate 
justice  between  the  litigants,  and  he  cannot  disregard  such 
legal  method  with  impunity.  But  where  default  is  not  au- 
thorized, the  proceeding  against  a  garnishee  who  will  not 
respond  is  by  personal  action.^ 

When  the  garnishee  has  been  summoned  to  appear  in  court 
to  be  examined,  but  no  interrogatories  have  been  served  upon 
him,  he  ought  not  to  have  judgment  of  default  entered  against 
him  without  further  effort  to  reach  him,  and  without  an}^  evi- 

1  Baldwin's  Appeal,  86  Pa.  St.  483.        6  Axmau  v.  Dueker,  45  Kan.  179, 

2yelvertonnBurton,26Pa.  St.  351.        "Mansfield  v.  Express  Co.,  58  Me. 

3  Anthanissen  r.  Towing  Co.  (Ga.),  35;  De  Blanc  r.    Webb,   5   La.    82; 

17  S.  E.  951.  Vason  v.  Clarke,  4  La.  Ann.  581. 

*Rock  V.  Singmaster,  63  la.  511;        ^Selman  r.  Orr,  75  Tex.  528, 
McDonald  v.  Vinette,  58  Wis.  619;        » Giles  v.  Hicks.  45  Ark,  271;  Wil- 

Arrostrong  v.   Heritage  (Mich.),   59  cher  r.  Shea,  13  Bush,  128;  Smith  n 

N.  W.  439.  Gown,  3  Met.  (Kj-.)  171 ;  Griswold  v. 

5  Kohler  v.  Muller  (Pa.),  26  A.  255.  Popliam,  1  Duv.  170. 


356  GARNISHEE    PKOCEEDINGS    BEFORE    DISCLOSURE.         [§  500. 

dence  showing  that  he  is  chargeable  as  garnishee.^  ISTor  should 
he  be  defaulted,  after  answering,  on  unimportant  objections, 
such  as  that  the  answer  was  filed  in  vacation.^  Where  re- 
quired to  appear  for  examination  in  court,  if  he  fails  to  do  so 
but  files  his  answers  instead,  they  may  be  stricken  out  and 
default  entered.^ 

He  is  not  to  be  defaulted  for  not  answering  when  a  motion 
by  the  defendant  to  quash  the  attachment  is  pending.*  If 
any  good  ground  for  quashing  exists  and  the  defendant  avails 
himself  of  it,  or  if  the  whole  proceeding  against  the  garnishee 
has  not  been  in  conformity  to  statute,  and  either  he  or  the 
defendant  avails  himself  of  it,  there  can  be  no  default.^  If 
essentials  have  been  omitted,  all  is  void  whether  either  avails 
himself  of  the  omissions  or  not.  If  the  summons  was  not 
sufficient  to  bring  the  garnishee  into  court,  default  for  non- 
appearance is  void.^  So  if  the  summons  does  not  show  when 
and  where  he  is  required  to  answer.^  These  and  like  defects 
are  held  fatal  when  not  w^aived ;  ^  and  waiver  is  not  allowable 
in  all  the  states.  A  judgment  by  default  makes  out  a  'prima 
facie  case  of  indebtedness.** 

If  the  garnishee  has  answered,  but  is  required  by  the  court 
to  make  his  answers  more  specific,  and  he  refuses  or  neglects 
to  do  so,  he  may  have  judgment  by  default  rendered  against 
him.^"  The  judgment  should  be  by  default  and  not  final,  when 
rendered  against  a  garnishee  who  stands  by  his  plea  to  the 
jurisdiction  after  it  has  been  overruled. ^^ 
•  §  500.  Setting  default  aside. —  A  default  may  be  set  aside 
on  proper  showing,  at  the  term  in  which  it  was  entered,^-  where 
the  court  has  discretion.^*     At  a  following  term  a  defaulted 

1  Lewis  V.  Faul,  39  Ark.  470.  Yerg.  461 ;  Moody  v.  Alter,  13  Heisk. 

2  Curry  v.  The  National  Bank  of  143;  Miller  v.  O'Bannon,  4  Lea,  403. 
Augusta,  53  Ga.  38.  ^Townsend  v.  Libbey,  70  Me.  163; 

3  Penn  v.  Pelan,  53  la.  535.  Freeman  v.  Miller,  58  Tex.  373. 

4  Laflin  v.  Baltimore,  etc.,  63  Md.  76.  lo  Scamahorn  r.  Scott,  43  la.  539. 

5  Iron  Cliffs  Co.  v.  Lahais,  53  Mich.  ^  Toledo,  etc.  R  R.  Co.  v.  Reynolds, 
394.  73  111.  487. 

6  Sun  Ins.  Co.  v.  Seeligson,  59  Tex.  3.       12  Scamahorn  v.  Scott,  43  la.  539. 
'Thomas  v.  Hoffman,  63  la.  135.       i^Segogr.  Engle,  43Minn.  191 ;  Tal- 

Compare  Hearn  v,  Adamson,  64  Ga.  ladega  Co.  v.  McDonald,  97  Ala.  508 ; 

608.  Rich  V.  Thornton,  69   id.  473;   Des- 

8  Illinois  Central,  etc.  v.  Brooks,  90  cribes  v.  Wiimer,  09  id.  35,  31 ;  1  Black 

Tenn.    161;    Hearn    v.    Crutcher,   4  on  Judgt,  g§  133,  347.     Second  de- 


§  501.]  DEFAULT.  357 

garnishee  (unless  under  unusual  circumstances)  would  come 
into  court  with  bad  grace  to  ask  leave  to  answer  and  suspend 
execution.'  Even  though  he  offer  to  show  then  that  the  fault 
was  the  result  of  a  mistake  or  surprise,  the  court  will  refuse 
to  reopen  the  judgment  rendered  against  him.-  At  that  late 
stage,  however,  if  the  default  could  be  set  aside  without  injus- 
tice to  the  attaching  creditor,  the  court  in  the  exercise  of 
sound  discretion  might  grant  relief  upon  the  garnishee's  show- 
ing that  failure  to  answer  was  not  any  fault  of  his,  unless 
w^here  the  court  is  legally  inhibited  from  the  exercise  of  such 
discretion  after  the  close  of  the  term.  "What  is  proper  show- 
ing is  the  satisfactory  explanation  of  the  neglect  and  seeming 
contumacy.^ 

A  judgment  by  default  rendered  against  a  garnishee  who 
has  failed  to  plead  though  notified  will  not  be  set  aside  on 
the  ground  that  the  garnishee  was  taken  by  surprise,  or  that 
there  were  irregularities,  if  they  were  onl}^  such  as  might 
have  been  prevented  by  his  timely  response.* 

§  501. -Reviewal  by  the  appellate  court  has  been  denied, 
when  the  judgment  was  by  default  in  the  trial  court,  against 
a  garnishee,  and  an  ineffectual  effort  had  been  made  to  set  it 
aside.^ 

In  Indiana,  when  there  is  judgment  by  default,  the  sum- 
mons must  be  set  out  in  the  record.  The  recital  of  the  serv- 
ice, in  the  entry  of  judgment,  is  not  sufficient.^ 

fault:  McDonald  v.  Finney  (la.),  54  ing  garnishee.    BushnelH'.  Allen,  48 

N.  W.   476;   la.  Code,   §  2985.     See  Wis.  460.     In  Iowa  the  court  may 

Scamahorn  v.  Scott,  43  la.  529.  issue  executions  against  a  defaulting 

^  Id.  garnishee  two  daj's  after  judgment 

2  Abell  r.  Simon,  49  Md.  318.  against  the  defendant.     Langford  v. 

3  Peters  v.  League,  13  Md.  58;  Ottumwa  Water  Power  Co.,  53  la. 
Friedenrich   v.   Moore,   24    id.    295 ;  415. 

Hair  v.  Lowe,  19  Ala.  224 ;  Willet  v.  ">  United  States  Ex.  Co.  v.  Bedbury, 

Price,  32  Ga.  115 ;  Wind  wart  v.  Allen,  34  III.  459.     Sec,  to  like  effect.  Russell 

13  Md.  196 ;  Fifield  v.  Wood,  9   la.  v.  Freedmen's  Savings  Bank.  50  Ga. 

250 ;  Parmenter  v.  Childs,  12  id.  22 ;  575.     Compare  Evans  v.   Mohn,   55 

Rhode  Island  Ex.  Bank  v.  Hawkins,  la.  302. 

<5  R  L  198.  6  Debs  v.   Dalton   (Ind.),  34  N.  E. 

4  Gibbons  v.  Cherry,  53  Md.  144.  237;  Woods  v.  Brown,  93  lud.  164; 
In  Wisconsin,  after  judgment  against  Fee  r.  State,  74  id.  66;  Miles  v.  Bu- 
the  principal  defendant  in  a  justice's  chanan,  36  id.  490;  Cochuower  u, 
court,  judgment  in  the  same  amount  Cochuower,  27  id.  253. 

may  be  rendered  against  a  default- 


358  GAKNISIIEE    PROCEEDINGS    BEFORE    DISCLOSURE.        [§  502. 

The  colirt  should  be  even  more  liberal  in  allowing  the  be- 
lated garnishee  to  answer  after  default  than  in  granting  the 
privilege  to  an  ordinary  suitor  defaulted,  since  he  is  a  disin- 
terested party  in  the  proceeding  so  far  as  any  prospect  of  be- 
ing benefited  is  concerned,  yet  an  interested  third  person  so 
far  as  the  .danger  of  being  injured  is  concerned. 

Even  if  he  has  answered  and  denied  indebtedness  and  pos- 
session of  property,  he  may  in  certain  circumstances  be  de- 
faulted for  not  answering  to  a  replication.  Even  if  he  have 
no  notice  of  such  replication,  he  may  be  presumed  to  know 
whatever  is  of  record  after  his  first  appearance,  when  the  suit 
is  separate  or  in  a  different  court  from  that  of  the  principal 
one,  in  which  he  ought  not  to  be  expected  to  follow  the  laby- 
rinths of  a  litigation  in  which  he  is  not  an  interested  party^ 
without  notice. 

§  502.  Curiously  enough,  the  ancillary  proceeding  is  essen- 
tial to  the  existence  of  the  principal  action  when  the  suit  is. 
upon  a  debt  npt  due.  Under  such  circumstances  the  latter 
cannot  stand  alone.^  No  one  can  ordinarily  sue  upon  a  debt 
not  due.  The  legislator  specially  authorizes  that  such  a  suit 
may  be  brought,  accompanied  by  attachmerit,  when  the  nec- 
essary grounds  are  laid.  The  dissolution  of  the  attachment 
in  such  a  suit  would  work  the  dismissal  of  the  main  action ; 
a  result  not  attending  such  dissolution  in  suits  upon  matured 
obligations.- 

Can  the  attachment  proceeding  be  properly  styled  "  ancil- 
lary "  in  a  suit  dependent  upon  it  for  existence?  It  is  in  aid 
of  execution ;  and,  as  there  can  be  no  judgment  upon  the  de- 
mand till  the  debt  has  become  due  and  owing,  the  term  seems 
proper,  at  least  at  the  termination  of  the  suit.  Upon  the  trial 
of  the  main  cause,  after  the  maturity  of  the  obligation,  the 
defeat  of  the  plaintiff  would  dissolve  the  attachment,  as  in  any 
other  case,  though  the  dissolution  of  the  attachment  alone 
would  not  then  defeat  the  main  action;  hence  the  term  "an- 
cillary "  is  seen  to  be  appropriate. 

1  Gowan  v.  Hanson,  55  Wis.  341.  2 1^. 


CHAPTER  XIY.       ' 

THE  GARNISHEE'S  DISCLOSURE. 

I.  Exceptions  by  the  Garnishee §§  503-506 

II.  Requisites  of  the  Answer 507-513 

III.  The  Answer  Taken  as  True 514-519 

IV.  Defenses  Stated  in  the  Answer 520-529 

V.  Defense  for  Absent  Defendant 530-533 

VI.  Amended  Answer 533-538 

VII.  Traverse  of  the  Answer 539-551 

VIIL  The  Charging  Order 552-553 

I.  Exceptions  by  the  Garnishee. 

§  503.  To  tlie  jurisdiction. —  The  garnishee  may  plead  to  the 
Jurisdiction,  not  only  to  relieve  himself  from  the  care  of  being 
drawn  into  the  attachment  suit,  but  also  to  protect  himself 
against  any  subsequent  attack  by  the  defendant.^  Whatever 
would  be  a  good  reason  to  sustain  the  plea  were  the  suit 
brought  by  the  defendant  would  be  good  here,  where  the  de- 
fendant's creditor  is  proceeding  upon  the  defendant's  right. 

Want  of  jurisdiction  over  the  defendant  would  include  the 
want  of  it  over  the  garnishee,  since  the  hitter's  position  is 
subsidiary  to  that  of  the  former  respecting  the  court's  power 
to  hear  and  determine ;  but,  beyond  this,  there  may  be  other 
reasons  wh}'- the  garnishee's  obligation  cannot  be  passed  upon, 
though  the  defendant's  may. 

The  defendant  in  court  must  look  out  for  the  jurisdiction 
so  far  as  he  is  concerned ;  for,  should  he  waive  all  objection, 
he  cannot  afterwards  hold  the  garnishee  guilty  of  laches  for 
not  pleading  what  he  might  have  pleaded  himself. 

1  Dennison  v.   Taj'lor,  142  111.  45 ;  Montrose    v.    Dodson,    76    la.    173 ; 

Baldwin  v.   Ferguson,   35    111.  App.  Bushuell  &  Clark  v.  Allen,  48  Wis. 

393 ;  Bowen  v.  Pope,  26  id.  233 ;  Na-  460 ;  Harmon  v.  Birchard,  8  Blackf. 

tional  Bank  v.  Titsworth,  73  111.  591 ;  418;  Webb  n  Lea,  6  Yerg.  473;  Rob- 

Wyatt's   Adm'r  r.    Ranibo,  29  Ala.  ertson  v.  Roberts,  1  A.  K.  Marshall, 

510;  Dew  v.  Bank  of  Ala.,  9  id.  323;  247;  Featherston  r.  Compton,  8  La. 

Holek  V.  Pheuix  Ins.  Co.,  63  Tex.  66 ;  Ann.  285. 


360  garnishee's  disclosuee.  [§§  504,  505. 

§  504.  The  garnishee  may  except  to  any  proceeding  against 
him  which  is  laclying  in  compliance  with  statutory  require- 
ments, as  they  must  be  strictly  observed  and  are  jurisdic- 
tional.^ He  should  except  to  the  lack  of  affidavit,  bond,  etc., 
for  his  own  future  protection,  when  the  defendant  is  not  in 
court.^  He  cannot  question  the  summons  or  return  after  he 
has  disclosed  and  tendered  money  to  the  court.^ 

He  may  except  that  the  court  has  no  jurisdiction  over  the 
propertjT"  in  his  possession  or  the  debt  which  he  owes,  on  ter- 
ritorial grounds.  The  court  cannot  compel  a  foreign  corpora- 
tion to  appear  within  its  bailiwick  to  make  a  disclosure.''  The 
answer,  though  made  before  the  term  to  which  the  summons 
was  returnable,  is  good  if  not  excepted  to.'^ 

§  505.  To  interrogatories. —  Exceptions  to  interrogatories 
may  be  taken  when  they  are  of  such  character  that  the  law 
does  not  require  that  they  should  be  answered.  Persons 
interrogated  respecting  funds  officially  held  which  are  not 
subject  to  garnishment;  persons  questioned  about  business 
relations  of  such  character  that  neither  an  affirmative  nor  a 
negative  reply  would  avail  the  interrogator,  may  except  and 
may  withhold  response  till  the  court  pass  upon  the  exception. 
All  impertinent,  disrespectful,  irrelevant  and  illegal  interrog- 
atories may  be  resisted  by  exception.*^  If  some  are  right  and 
others  wrong,  the  former  may  be  answered  and  the  latter 
resisted.     The  garnishee  is  not  bound   to  answer  if  he  would 

1  Iron  Cliffs  Co.  v.  Lahais,  52  Mich,  gruder,  10  id.  383 ;  Shivers  v.  Wilson, 

394 ;  Ford  v.  Dry  Dock  Co.,  50    id.  5  Harr.  &  J.,  130 ;  Yerby  v.   Lack- 

358 ;  Gibbon  v.  Bryan,  3  111.  App.  298 ;  laud,  6  id.  446 ;  Kimball  v.  McCom- 

Railroad   u   Todd,   11    Heisk.    549;  ber,  50  Mich.  362. 

Greene  v.  Tripp,  11  R.  I.  434;  Smith  spiourney  v.  Rutlege,  73  Ga.  735, 

V.  McCutchen,  38  Mo.  415 ;  McDonald  ''  Sliafer  Iron  Co.  v.  Circuit  Judge, 

V.   Vinette,   58  Wis.    619 ;    AVells  v.  88  Mich.  464. 

Am.  Ex.  Co.,  55  id,  23.  5  plant  v.  Mutual  Ins.  Co.  (Ga.),  19 

-'Railroad  v.  Todd,  11  Heisk.  549:  S.  E.  719. 

Oldham  v.  Ledbetter,  1  How,  (Miss.)  6  Rhine  v.  Danville,  etc,  R.  Co.,  10 

43;  Ford  v,  Hurd,  4  Sm.  &  M,  683;  Phila.   336;    Humphrey  v.  Warren, 

Ford  V.  Woodward,  2  id.  260 ;  Wash-  45  Me,  216 ;  I.yman  v.  Parker,  33  id, 

burn   V.    N.  Y.  etc.   Co.,   41  Vt.  50 ;  31 ;  Carrique  v.   Sidebottom,  3  Met, 

Pope  t".  Hibernia  Ins,  Co.,  24  Ohio  St.  297;  State  N,   Bank  v.  Boatner,   39 

481;  Clarke  v.  Meixsell,  29  Md.  221 ;  La.  Ann.  843,    ,See  Frizzell  t;.  Willard, 

Barr  v.  Perry,  3   Gill,  313 ;  Bruce  v.  37  Ark.  478. 
Cook,  6  Gill  &  J.,  345;  Stone  v.  Ma- 


§§  50G,  507.]  EEQL'ISITES    OF    THE    ANSWER,  361 

thus  criminate  himself ;  ^  but  he  has  been  made  to  disclose 
when  he  has  been  colluding  with  the  defendant  in  the  fraudu- 
lent disposition  of  property.'  He  need  not  reveal  privileged 
communications.^ 

^  500.  If  answers  have  been  filed,  and  then  further  inter- 
rogatories propounded  without  leave  of  court,  the  garnishee 
may  except  that  he  has  already  answered  and  is  not  obliged 
to  respond  a  second  time;  and  then,  till  the  court  decide,  he 
may  safely  be  silent.  If  the  court  has  already  granted  leave 
for  the  second  propounding,  it  has  not  passed  at  all  upon  the 
character  of  the  questions;  and,  if  they  are  a  mere  repetition 
(either  in  the  same  or  different  verbiage)  of  those  already  an- 
swered ;  or  if  they  are  objectionable  for  any  other  reason,  the 
garnishee  may  yet  except  —  not  now  to  the  right  of  propound- 
ing, but  to  the  questions  propounded. 

It  is  often  of  the  highest  importance,  involving  the  gar- 
nishee's future  protection,  that  he  should  resist  improper  and 
illegal  inquisition.  It  is  always  the  safer  course  to  proceed 
under  judicial  orders  and  not  to  do  unnecessary  things  which 
might  afterwards  be  charged  to  have  been  voluntary  disclos- 
ures.'* 

II.  Requisites  of  the  Answer. 

§507.  How  made. —  The  usual. way  in  which  interrogato- 
ries are  answered  is  b}'^  writing  the  replies  to  the  questions 
in  their  order,  signing  them,  swearing  to  them  before  any 
])erson  authorized  to  administer  oaths,  and  filing  them  in  the 
office  of  the  clerk  of  the  court  whence  they  were  issued  within 
the  legal  delay.^  Where  the  summons  is  not  accompanied  by 
interrogatories,  but  commands  the  appearance  of  the  garnishee 
in   court,  at  a  specified  time,  for  oral  examination,  he  must 

1  Battles  V.   Simmons,  21  La.  Ann.  *  Gould    v.    Meyer,   3G    Ala.    565; 

416:  Kearney  v.  Nixon,  19  id.  16.  Gunn  v.  Howell,  35  id.  141.     In  Ala- 

-  Oberteuflfer  v.  Harwood,  6   Fed.  bama  demurrer  is  not  applied  to  a 

828 ;  Neally  v.  Ambrose,  21  Pick.  185 ;  defective  writ  of  garnishment ;  the 

DevoU  V.  Browneli,  5  id.  448 ;  Bell  v.  practice  is  to  plead  in  abatement  or 

Kendrick,  8  N.  II.  520.  move  to  quash.    Curry  r.  Woodward, 

'Shaughnessy  v.  Fogg,  15  La.  Ann.  50  Ala.  25S. 

ooO.    See  Comstock  v.   Paie,  18  La.  5  Taylor  r.  Kaiu,  8  Bax.  35. 
479.     Compare  White  v.  Bird,  20  La. 
Ann.  188. 


362  garnishee's  disclosure.  [§§  508,  509. 

comply  with  that  form  of  response.  If  there  is  an  examina- 
tion after  the  filing  of  the  written  replies,  the  oral  statements 
are  taken  as  a  part  of  the  answer.^ 

§  508.  In  some  states  (as  in  Oregon)  the  sheriff  takes  the 
certified  answer  of  the  garnishee,  which  is  filed  and  held  true, 
unless  the  plaintiff  have  the  garnishee  ordered  to  appear  in 
court  for  examination.^  Whether  giving  his  answer  to  the 
serving  officer  or  responding  in  court,  the  garnishee  must  dis- 
close personally  —  not  by  proxy ;  ^  a  merchant  cannot  have  his 
clerk  answer  for  him.  Any  member  of  a  garnished  firm  may 
answer  for  it.^  A  general  agent  of  a  foreign  corporation  may 
answer  for  it  if  authorized  to  receive  service  of  process  in  its 
behalf.^  The  officer  answering  for  a  corporation  need  not  be 
the  one  on  wliom  tlie  writ  or  list  of  interrogatories  was  served.* 

Answer  cannot  be  made  by  the  administrator  of  one  sum- 
moned as  a  o-arnishee  who  has  died  without  disclosino^.'^ 

§  509.  The  answer  must  be  responsive  to  the  interrogatories* 
must  be  categorical  when  the  questions  so  require  and  the 
facts  will  so  admit,  and  may  be  accompanied  with  such  ex- 
planation as  is  necessary.  It  must  be  impartial  as  between 
the  plaintiff  and  defendant,  free  from  argumentative  state- 
ments; it  must  be  such  as  the  garnishee  could  rightly  be  held 
to  in  case  of  a  subsequent  suit  by  his  creditor  upon  his  final 
discharge  from  the  garnishment,  and  such  as  would  protect 
him  from  repayment  in  case  he  should  be  held  liable  to  the 
garnishment.  It  must  be  expressed  in  intelligible  language, 
but  technical  nicety  is  not  essential.     Calling  a  hond  a  note 

1  Wilson  V.  Wagar,  26  Mich.  452 ;  132 ;   Anderson  v.  Wanzer,  5  How. 

Campau    v.  Traub,   27  id.   215.    In  (Miss.)  587. 

Iowa  there  can  be  no  examination  of  ^  Lorraan  v.  Plioenix  Ins.  Co.,  33 

tlie  garnishee  unless  it  is  directed  by  Mich.  65.     He  must  swear  upon  his 

the  court.     3  la.  Code,  4$  2982 :  El-  personal  knowledge.  .Plant  v.  Mutual 

wood  V.  Crowley,  64  la.  68.    An  order  Ins.  Co.  (Ga.),  19  S.  E.  719 ;  Sprinz  v. 

for    examination    may   be    revoked  Vannuchi,   80    Ga.   774;    Martin    v. 

when  it  is  shown,  by  a  prior  decision.  Lamb,  77  id.  256 ;  Stancel  v.  Puryear, 

that  the  garnishee  is  not  indebted  to  58  id.  445 ;  Bryan  v.  Ponder,  23  id.  482. 

the  defendant.     Hong  Kong,  etc.  v.  ^  Duke  v.   Locomotive  Works,  11 

Campbell,  58  Hun,  610.  R.  L  599. 

-  Batchellor  v.  Richardson,  17  Oreg.  ^  Brecht  v.  Corby,  7  Mo.  App.  300; 

334,  Tate  v.  Morehead,  65  N.  C.  681. 

3  Cornell  r.  Payne,  115  111.  63.  »  Cullers  v.   City  Bank  (Tex.   Civ. 

*  Dupierns  r.  Hallisay,  27  La.  Ann.  App.),  27  S.  W.  900. 


§§  5iU,  511.]  REQUISITES    OF    THE    ANSWER.  363 

was  held  immaterial.'  It  must  be  candid:  a  garnishee  asking 
equity  must  show  himself  free  from  fault.- 

§  510.  Knowledge,  hearsay,  etc. —  The  answer  should  disclose 
all  necessary  facts,  within  the  knowledge  of  the  garnishee, 
elicited  b}'  the  interrogatories.''  It  is  not  confined  to  personal 
knowledge,  but  information  received  from  others  should  be  dis- 
closed —  even  hearsay  is  admissible.^  It  may  be  based  on  be- 
lief rather  than  perfect  knowledge.'  It  may  be  a  statement  of 
facts  contained  in  a  deed  or  other  legal  instrument.*'  Though 
the  garnishee,  indebted  under  a  written  contract,  has  no  right  to 
qualify  it  by  statements  of  oral  modifications  between  himself 
and  the  defendant,^  when  otherwise  obligated  he  may  explain, 
qualify  and  refer  to  papers  in  his  answer,  if  necessary,^  and 
may  attach  papers  subject  to  the  court's  discretion  as  to  the 
papers  attached.^ 

§  511.  If  the  garnishee  does  not  know  a  matter  about  which 
he  is  interrogated,  he  should  frankly  say  so.  Such  an  answer 
(without  further  action  and  proof  on  the  part  of  the  plaintiff) 
will  effectuate  his  discharge.'" 

It  has  been  held  that  the  omission  of  the  initial  of  the  de- 
fendant's middle  name  in  the  garnishment  process  justifies  the 
garnishee  in  not  acknowledging  liability  to  him,  unless  the 
garnishee  knows  that  the  defendant  is  identical  with  the  per- 
son misnamed  in  the  process.'' 

1  Ashby  V.  Watson,  9  Mo.  235.  Ormsby  v.  Anson.  21  Me.  23 ;  Minchin 

'■^  Atlantic  Ins.  Co.  r.  Wilson,  5  R.  I.  v.  Moore,  11   Mass.   90;    Roquest  v. 

479.  Steamer,  18  La.  Ann.  210. 

s  Davis  Lumber  Co.   v.    Bank,  84  ^  Stackpole  v.  Newman,  4  Mass.  85. 

Wis.  1 :  Lusk  v.  Galloway.  52  id.  164.  i"  Crisp  v.  Fort  Wayne,  etc.  R  Co., 

■*  Crisp  V.  Fort  Wayne,  etc.  R.  Co.,  supra;  Sexton  v.  Amos,  supra;  Lyon 

98  Mich.  648 ;  Drake  v.  Railway  Co.,  v.  Kueeland,  58  Micl).  570 ;  Weirich 

69   id.   168 ;  Sexton  v.  Amos,  39   id.  v.  Scribner,  44  id.  73 ;  Spears  v.  Chap- 

695.  man,  43  id.  541 :  Hackley  v.  Kanitz. 

5  Sexton  V.  Amos,  39  Mich.  695;  39  id.  398;  Townsend  v.  Circuit 
Clinton  Bank  v.  Bright,  126  Mass.  Judge,  id.  407;  Hewitt  v.  Lumber 
535 ;  Crossman  v.  Crossman.  21  Pick.  Co.,  38  id.  701 ;  Lorman  v.  Insurance 
21 ;  Bostwick  v.  Bass,  99  ]\Iass.  469;  Co.,  33  id.  65.  See,  as  to  disclosure  in 
Fay  V.  Sears,  111  id.  154;  Shaw  v.  justices' courts  in  Michigan.  Souther- 
Bunker,  2  Met  376 ;  Laughran  v.  land  v.  Burrill,  83  Mich.  13 ;  Whit- 
Kelly,  8  Cush.  199.  See  Smith  v.  worth  v.  Railroad  (Mich.),  45  N.  W. 
Chicago,  etc.  R  R  Co.,  60  la.  312.  500.     See,  also,  Eddy  v.  Providence, 

«  Allen  V.  Hazen,  26  Mich.  142.  etc.,  15  R  L  7. 

7  Field  V.  Watkins,  5  Ark.  672.  ^  German    N.    Bank    v.    National 

8  Bell    V.    Jones,    17    N.    H.    307;  State    Bank,   3  Colo.  App.    17.     As 


304  garnishee's  disclosuee.  [§§  512,  513. 

§  512.  Evasive  resj)onse. —  Doubtful,  ambiguous,  misleading 
answers  are  construed  against  the  garnishee.^  The  rule  works 
hardship  in  many  instances,  but  what  else  is  the  court  to  do? 
The  garnishee  has  had  his  opportunity  of  denying  liability ; 
has  had  his  time  for  collecting  the  facts  and  for  maturing  his 
responses;  has  had  the  benefit  of  counsel  if  he  chose  to  avail 
himself  of  it;  and  if,  after  all,  he  has  innocently  or  otherwise 
rendered  himself  chargeable  by  ambiguous  statements,  the 
court  may  not  always  come  to  his  relief  and  deprive  the 
plaintiff  of  the  means  of  making  his  money. 

Construed  against  himself,  the  answers  of  the  garnishee 
must  not  yet  be  strained  or  distorted  to  his  prejudice,  though 
somewhat  ambiguous;  they  should  receive  fair  dealing  at  the 
hands  of  the  court;  and  if  the  garnishee's  error  is  one  of  law, 
the  court  should  not  hold  him  accountable.  Discrepancies 
may  be  reconciled  by  a  comprehensive  view  of  the  answer  as 
a  whole,  l^o  technical  nicety  should  be  permitted  to  entrap 
the  honest  holder  of  defendant's  property  or  credit  into  such 
position  as  would  render  him  doubly  liable. 

§  513.  If  his  answer,  though  not  full,  is  not  wilfully  evasive, 
and  no  error  is  assigned,  the  court  may  give  it  effect,^  or  may 
require  a  more  specific  disclosure.^     If  such  disclosure  is  or- 

to   uames  and   initials,   see  kindred  Ark.   241 ;    Fretvvell    v.   Laffoon,  77 

cases  cited  by  the  court.     Button  v.  Mo.  26 ;  Sebor  v.  Armstrong,  4  Mass. 

Simmons,  65  Me.  583;  Terry  r.  Sis-  206;  Toothaker  u  Allen,  41  Me.  324; 

son,  125  Mass.  560;  Bowen  r.  Mul-  Scott  n  Ray,  18  Pick.  360;  Graves  n 

ford,  10  N.  J.  L.  230 ;  Hutchinson's  Walker,  21  id.  160 ;  Shearer  v.  Handy, 

Appeal,  92  Pa.  St.  186 ;  Wood  v.  Rey-  22  id.  417 ;  Hart  v.  Dahlgreen,  16  La. 

nolds,  7  Watts  &  S.  406;  Fewlass  v.  559.     See  Gordon  v.  Coolidge.  1  Sum. 

Abbott,  28  Mich.  270 ;  Tweedy  v.  Jar-  537.     Compare  Hackley  v.  Kanitz,  39 

vis,  27  Ct.  42 ;  Perkins  v.  McDowell  Mich.  398. 

(Wyo.),  23  P.  71.  2 Fi,st  N.  Bank  v.  Robertson,  3  Tex. 

1  Brainard  v.  Shannon,  60  Me.  342 ;  Civ.  App.  150.     See  Railway  Co.  v. 

Grever  v.  Culver,  84  Wis.  295 ;  Far-  Rollins,  80  Tex.  579 ;  Insurance  Co. 

rell  V.  Hennesy,  21  id.  639 ;  Miller  v.  v.   Friedman,   74  id.    56 ;  Bowers  v. 

Larson,  17  id.  624 ;  Sexton  v.  Rhames,  Insurance  Co.,  65  id.  51. 
13  id.  99:  Dawson  V.  Maria,  15  Greg.        -^  Little    v.   Nelson,    !!    Miss.   672; 

556;  Parker  r.  Wilson,    61  Vt.  116;  People    v.    Cass    Circuit    Judge,   39 

Reinhart  v.  Soap  Co.,  33  Mo.  App.  24 ;  Mich.  407 ;  Hamburger  v.  Corr  (Pa.), 

Keel  V.  Ogden,  5  Mon.  362 ;  Sampson  27  A.  680.     While  exceptions  to  the 

V.   Hyde,   16  N.  H.   492;  Parker  v.  court's  order  (charging  the  garnishee) 

Page,  38  Cal.  532 ;  Kelly  v.  Bowman,  are  pending,  he  cannot  add  to  his 

12  Pick.  383;  Scales  n  Swan.  9  Por-  disclosure.      American    Button-hole 

ter,    163;    Ricliardsou   v.    White,    19  Co.  u  Burgess,  75  Me.  52. 


§  514.]  AXSWEK  TAKEN  AS  TKUE.  305 

(lerecl  to  be  made  in  open  court,  the  garnishee  is  entitled  to 
reasonable  notice ;  ^  especially  if  he  is  to  be  recalled  from  a 
place  out  of  his  county.-  In  Texas  the  garnishee  must  be  ex- 
amined in  his  own  county.^  If  no  objection  has  been  made  to 
the  answer,  it  is  not  to  be  treated  afterwards  as  irresponsive 
and  as  if  theL.-G  icjJ  been  no  answer.* 


III.  The  Ansavee  Taken  as  True. 

§514.  Presumahhj  true. —  The  answers  are  to  be  deemed 
true,^  unless  controverted  successfully  by  the  plaintiff  upon 
traverse,  whether  they  are  made  to  interrogatories  filed  in 
the  main  attachment  suit,  or  in  an  auxiliary  proceeding  or 
sch'e  facias  suit.  In  either  case,  if  the}"  are  such  as  to  war- 
rant the  discharge  of  the  garnishee,  he  cannot  be  held  liable, 
though  the  plaintiff  may  have  his  remedy  afterwards  against 
him  in  damages  if  they  are  subsequently  found  to  have  been 
false,  and  the  plaintiff  has  suffered  loss  in  consequence.^  It 
has  been  held  that  new  matter,  not  directly  responsive  to  the 
interroiratories,  will  be  taken  as  tr-ue  when  not  controverted.^ 
If  the  garnishee  is  a  debtor  upon  a  note  not  negotiable  Avhich 
he  believes,  upon  information,  to  have  been  assigned,  so  that 
the  transferee  has  an  equitable  right  to  collect  it  for  his  own  use, 
though  in  the  name  of  the  payee,  the  answer  so  stating  would 
be  sufficient  to  discharge  the  garnishee  —  the  maker  of  the 
note.^     It  would  be  manifestly  unjust  to  require  that  the  gar- 

1  Cockfield  V.  Tourres,  24  La.  Ann.  (Ind.  App.),  31  N.  E.  474 ;  Reinhart  v. 

168.  Empire  Soap  Co.,  33  Mo.  App.  24; 

-  Columbus  Ins.  Co.   v.   Hirsh,  61  Eonan  v.  Dewes,  17  id.  306 ;  Chicago, 

Miss.  74.  etc.  R.  Co.  v.  Blogden,  33  111.  App. 

3  Cohn  V.  Tillman,  66  Tex.  98.  254.     The  garnishee  is  not  subject  to 

*  Taylor  v.  Trust  Co.  (Miss.),  15  So.  cross-examination.      Emery  v.   Bid- 

121;  Little  v.  Nelson,  61   Miss.  672 ;  well,  140  Mass.  271. 

Insurance  Co.  v.  Hirsh,  id.  74.  «Laughran  r.  Kelly,  8  Cush.  199; 

f"  Wildv.f>r  V.   Ferguson,   42  Minn.  Carpenter  r.  Gay,  12  R.  I.  306. 

112,  Vanderhoof  v.  McAffee,  41  id.  'JHolton  v.  Southern  Pac.  R  Co.,  50 

498    Lindenthal  r.  Burke,  2  Idaho,  Mo.  151 ;  Thompson  v.  Fisehesser,  45 

535 ;  Choate  v.  Blackford.  26  111.  App.  Ga.  369. 

656;     Manowsky  v.    Conroy,   33  id.  8  Clinton  N.  Bank   v.   Bright.  126 

141;  Lockett  r.   Rumbaugh,  45  Fed.  Mass.  535;  Fay  r.  Sears,  111  id.  154; 

27;  Mason  r.  Beebee,  44  id.  556 :  God-  Kingman  v.    Perkins,    105  id.   Ill; 

dard  V.  Guittar,  80  la.  129;  Henry  r.  Macomber  v.   Doane,  2  Allen,  541; 

Blew,  43  La.  Ann.  476;  ^YileK  v.  Lee  Ta\lor  v.  Collins,  5  Gray.  50  (note); 


366  garnishee's  disclosuee.  [§§  515,  516. 

nishee,  under  such  circumstances,  should  state  the  transfer  as 
a  fact  within  his  own  personal  knowledge.  ISTot  being  a  party 
to  the  assignment,  it  cannot  be  assumed  that  he  has  such 
knowledge. 

§  515.  He  knows  that  he  is  indebted  to  some  one,  and  he 
might  be  questioned  closely  with  reference  to  his  information 
concerning  the  transfer;  but  with  the  sworn  statement  unini- 
peached  that  he  does  not  know  who  is  the  holder  of  the  note, 
believes  it  is  not  the  original  payee,  and  has  been  so  credibly 
informed,  he  cannot  be  charged ;  for  the  facts  which  he  states 
from  such  information  and  belief  are  to  be  considered  as  true, 
like  those  stated  from  personal  knowledge.^  But  the  oral 
promises  of  the  drawee  of  a  bill  of  exchange  cannot  defeat 
garnishment  served  on  him  by  creditors  of  the  drawer,  in  a 
suit  against  the  latter.^ 

§516.  Statement  of  fraud,  etc. — If  the  garnishee,  whether 
in  reply  to  interrogatories  filed  in  the  main  attachment  pro- 
ceeding or  in  a  scire  facias  proceeding  ancillary  thereto,  states 
that  he  was  induced  by  representations  fraudulently  made  to 
him  by  the  principal  defendant  to  enter  into  a  contract,  but 
that  such  contract  was  void  by  reason  of  such  fraud,  and  that 
he,  the  garnishee,  is  not  indebted  to  the  defendant,  such  an- 
swer, being  not  traversed  and  disproved,  should  operate  the 
discharge  of  the  garnishee.*  Should  the  garnishee  admit  tlie 
validity  of  a  contract  with  the  attachment  defendant,  but  aver 
the  violation  of  it  by  the  latter,  and  answer  that  by  reason  of 
such  violation  nothing  is  due  to  the  defendant,  the  answer 
must  be  taken  as  true,  though  it  may  admit  that  there  are 
funds  in  the  garnishee's  hands.  Denying  that  he  owes  any 
debt  which  the  defendant  can  enforce,  the  garnishee  is  not 
charcreable.  Where  the  defendant  was  a  contractor,  and  could 
have  had  a  sum  due  him  on  the  contract  had  he  performed 
his  ]mrt,  but  who  abandoned  the  contract,  and  the  other  party 

Foster  v.  Sinkler,  4  Mass.  450 ;  Phipps  wick  v.   Bass,   99  id.  469 ;  Shaw  v. 

V.  Reiley,  15  Oreg.  494     Even  when  Bunker,  2  Met.  376;  Schafer  v.  Viz- 

an  adverse  claimant  has  appeared,  a  ena,  30  Minn.  387. 

trustee's  answer   upon   information  -  Baer  v.  English,  84  Ga.  403. 

and  belief  must  be  taken  as  true  and  »  Doj^le  v.  Gray,  110  Mass.  206 ;  Fay 

conclusive,  in  Massachusetts.  Clinton  n   Sears,    111   id.    154;  Bostwick    v. 

Bank  v.  Bright,  126  Mass.  535.  Bass,  99  id.  469. 
1  Fay  V.  Sears,  111  Mass.  154;  Bost- 


§§  517,  518.]  ANSWER   TAKEX    AS    TRUE.  367 

was  obliged  to  pay  others  for  the  work  he  should  have  done, 
such  other  person,  summoned  as  garnishee,  is  not  liable  after 
answering  with  a  statement  of  the  facts.^ 

One  receiving  and  keeping  money  paid  to  him  under  a  void 
order  cannot  dispute  the  legality  of  the  order.  This  principle 
has  been  applied  togarnishees.- 

§  517.  Further  ])roof. — Where  it  is  required  that  the  an- 
swers must  be  taken  as  true,  and  the  attaching  creditor  is 
inhibited  from  traversing  them,  his  right  to  further  proof  is 
confined  to  such  additional  facts  as  have  not  been  stated,  ad- 
mitted or  denied  by  the  answer.^  They  must  be  facts  not 
contradictory  of  the  answer,  where  such  rule  prevails,  but 
they  may  so  change  the  legal  import  of  it  as  to  result  in  the 
holdino^  of  the  garnishee  liable. 

AVhere  the  attaching  creditor  is  at  libert}^  to  dispute  the 
answer,  and  contests  a  statement  from  information  and  belief 
that  the  debt,  which  the  garnishee  admits  owing,  has  been 
assigned,  or  that  property  w4iich  he  holds  has  been  sold,  the 
supposed  assignee  or  vendee  may  be  made  a  party,  in  Mis- 
souri.^ 

§  518.  If  the  garnishee  has  answered  a  question  categor- 
ically, the  attachment  plaintiff  cannot  have  the  interrogatory 
taken  for  confessed.^  The  plaintiff  should  not  take  a  rule  for 
such  purpose  under  such  circumstances;  but  if  the  fact  sought 
to  be  elicited  may  be  reached  by  additional  interrogatories, 
he  may  be  permitted  to  propound  them  without  traversing 
the  answers  to  the  first.^  He  has  no  need  to  take  further 
action  when  liability  may  be  inferred  from  the  answer.'  But 
if  neither  the  original  nor  the  subsequent  disclosure  shows  that 

1  Doyle  V.  Gray,  110  Mass.  206;  stances  is  directed  to  make  an  order 
Mason  v.  Ambler,  6  Allen,  124  upon  the  supposed  vendee  or  assignee 

2  Jones  V.  Langhorne  (Colo.),  34  P.     to  appear  and  make  claim.     McKit- 
997 ;  Arthur  v.  Israel,  15  Colo.  152 ;  •  trick  v.  Clemens,  52  Mo.  160. 
Water  Co.  v.  Middaugh,  12  id.  434.  suUmeyeri".  Ehrmann,  24  La.  Ann. 

SBostwick   V.  Bass,  99   Mass.  469.  32. 

The  qualification  in  the  paragraphs  ^  Ober  v.  Matthews.  24  La.  Ann.  90. 

above,  " unless  traversed,"' is  iuappli-  ^Cornish  v.   Russell,  32  Neb.  397; 

cable  of  course  where  contradiction  Donnelly  v.  O'Connor,  22  Minn.  309 ; 

of  the  answer  is  not  allowed.  Swearingen   v.  Wilson,  2  Tex.  Civ. 

*Held  in  Missouri,  under  statute,  App.  157;  Moursund  i\  Priess,  84  Tex. 

that  the  court,  under  such  circum-  554. 


368  garnishee's  disclosuke.  [§§  510,  520. 

the  garnishee  has  property  of  the  defendant  or  is  indebted  to 
him,  there  can  be  no  order  in  favor  of  the  attaching  creditor,^ 
who  cannot  deny  the  truth  of  the  answer  when  he  does  not 
traverse,  and  cannot  recover  beyond  the  admitted  liabihty.- 

§519.  Promissory  note. —  The  maker  of  an  overdue  nego- 
tiable note  payable  on  demand,  who  answers  as  garnishee  that 
he  does  not  know  who  is  the  holder,  nor  who  was  the  holder 
at  the  date  of  the  summons,  but  who  makes  no  statement  of 
any  transfer  or  indorsement,  has  been  held  liable,  though  the 
result  would  have  been  otherwise  had  the  note  been  payable 
on  time  and  not  overdue.  x\n  indorsee,  under  such  circum- 
stances, should  have  given  the  maker  notice  of  the  indorse- 
ment ;  and,  in  the  absence  of  such  notice,  the  charging  of  the 
garnishee  and  the  payment  by  him  under  the  order  will  be  a 
good  defense  against  any  subsequent  suit  by  the  indorser 
against  the  maker.^  But  if  the  maker,  knowing  of  the  exist- 
ence of  an  indorsee,  should  pay  him  even  after  having  been 
summoned  as  garnishee,  and  should  so  state  in  his  answer,  he 
ought  to  be  discharged,  since  he  was  not,  under  such  circum- 
stances, the  debtor  of  the  attachment  defendant  who  was  the 
original  payee.^  It  might  be  a  matter  of  prudence  for  the 
maker  under  such  circumstances  to  withhold  payment  to  the 
indorsee  till  after  his  examination,  but  certainly  prudence 
would  not  require  that  he  should  subject  himself  to  liability. 

TV.  Defenses  Stated  in  the  Answer. 

V  §  520.  May  plead  as  if  directly  sued. —  The  garnishee,  deny- 
ing indebtedness,  may  set  up  whatever  grounds  he  would 
have  been  entitled  to  plead  had  the  action  been  directly 
brought  against  him  by  the  person  sued  in  the  attachment 
proceedings.^     They  must  be  grounds  wdiich,  at  the  time  of 

iKane  v.   Clough,   36   Mrch.   436;  (under  statute);  Knights  r.  Paul,  11 

Hewitt  V.  Wagar  Lumber  Co.,  38  id.  Gray,   225.     See    Gatchell  v.   Foster 

701.  (Ala.),  10  So.  434. 

2  Newell  V.  Blair,  7  Mich.  103;  ^Kauffman  v.  Jacobs,  49  la.  433. 
Thomas  v.  Sprague,  12  id.  120;  Pi-  Garnishee  not  liable  on  draft  not 
quet  V.  Swan,  4  Mason,  460;  Marks  payable  in  the  state.  Chad  bourn  u 
V.  Reinberg,  16  La.  Ann.   348;  Hib-  Gilman,  63  N.  H.  353. 

bard  v.  Everett,  65  la,  372 ;  Morse  v.        &  Sheedy  v.  Second  N.  Bank,  62  Mo. 
Marshall,  22  id.  290.  17;  Schuler  v.  Israel,  120  U.  S.  506; 

3  Scott  V.   Hawkins,  99   Mass.  550     McLaughlin  v.  Swann,  18  How.  217. 


§  521.]  DEFENSES    STATED    IN    ANSWER.  369 

the  service  of  the  garnishment,  he  could  have  set  up  against 
such  defendant.  If  then  indebted  to  him  upon  contract,  the 
garnishee  and  defendant  could  not  thereafter  rescind  the  con- 
tract so  as  to  cut  the  attaching  creditor  off  from  the  benefit 
of  the  garnishment  and  enable  the  garnishee  to  plead  such 
rescinding  of  contract  by  way  of  defense.^ 

§  521.  Garnishees  having  pleaded  non  assumpsit  for  the 
defendants  and  nulla  hona  for  themselves,  the  defendants 
appeared  and  confessed  judgment.  The  garnishees  then 
])leaded  that  a  receiver  had  been  appointed  for  the  defend- 
ants, and  that  the  indebtedness  of  the  garnishees  was  there- 
fore to  the  receiver;  but  the  plaintiff  successfull}'^  demurred.' 
The  recognition  by  a  garnishee  of  the  validity  of  an  assign- 
ment proves  the  relation  of  debtor  and  creditor  between  him 
and  the  assignor.^ 

The  garnishee  may  plead  prescription  *  or  an3'thing  that 
would  be  a  good  defense  against  the  alleged  indebtedness  were 
the  suit  directly  brought  by  his  own  creditor.  He  may  sei 
up  anything  which  his  defense  requires.^  He  may  plead  want 
of  consideration.^  He  may  show  no  property  and  no  funds  by 
a  general  statement  of  account  with  the  defendant.'  He  may 
answer  that  he  has  obligated  himself  to  pay  other  creditors  of 
the  defendant  to  the  extent  of  his  liability.**  The  garnishee 
should  plead  prior  garnishment  if  he  wishes  to  avail  himself 
of  it  to  prevent  being  made  to  pay  twice.''  So  if  goods  of 
the  defendant,  intrusted  to  him,  have  been  taken  from  him 

1  Fowler  v.  Williamson,  52  Ala.  16.  the  defendant's  creditors  before  he 

-  Bartlett  v.  Wilbur,  53  Md.  485.  was  summoned,  if  he  has  not  ac- 

3  Id.  cepted  the  order.     Rice  v.  Dudley,  34 

*  Benton  v.   Lindell,   10   Mo.   557 ;  Mo.  App.  383. 
James  v.  Fellowes,  20  La.  Ann.  116.        »  Schuerman  v.  Foster,  82  Wis.  319 ; 

5  Varian  v.  Association,  156  Mass.  1.  Bullard  y.  Hicks,  17  VL  198;  Smith 

6  Ball  V.  Citizens'  Bank,  39  Ind.  364 ;  v.  Stratton,  56  id.  362 ;  Fisher  v.  Will- 
Sheldon  V.  Simonds,  Wright,  724 ;  iams,  id.  358.  See  Hirth  v.  Pfeifle.  42 
Closer  V.  Maberry,  7  Watts,  12.  Midi.  31.     In  an  action  on  contract 

'  First    N.    Bank   v.    Robertson,    3  the  garnishment  of  the  defendant  in 

Tex.   Civ.    App.    150;  Rutherford   v.  another   suit   will   not    prevent    the 

Fullerton,  89  Ga.  353 ;  Henry  v.  Bew,  plaintiff  from   obtaining  a  verdict 

43  La.  Ann.  476.  Creed  v.  Creed  (Mass.),  36  N.  E.  749. 

8  Beardsley    v.    Beardsley,  23    111.  See  Guilford  v.  Reeves  (Ala.),  15  So. 

App.  317.     But   he  will  be  charged,  661. 
tiiough  he  received  an  order  to  pay 
24 


370  garnishee's  disclosure.  [§  522. 

by  direct  attachment  in  another  case.^  Whatever  his  pleas  in 
defense  they  must  be  consistent^  and  lawful.^  But  if  the  plea 
should  involve  the  liquidation  of  accounts  between  him  and 
the  defendant,  it  would  seem  that  the  investigation  ought  not 
to  be  had  in  the  attachment  proceeding,  and  that  the  gar- 
nishment should  not  be  sustained.  Proof  of  set-off  in  such 
proceeding  would  not  be  adduced  contradictorily  with  the 
defendant;  and  he  would  not  be  bound  by  the  statements  of 
the  garnishee  nor  b}^  the  judicial  finding  thereon  should  he 
afterwards  sue  for  settlement.  Of  course  the  defendant  is 
not  put  to  the  worse  by  any  acknowledgment  of  indebtedness 
to  him  by  the  garnishee,  nor  can  he  be  by  any  denial  thereof; 
but  the  investigation  of  accounts,  with  one  of  the  parties 
thereto  left  out  of  the  inquiry,  seems  not  advisable.  How- 
ever, if  the  garnishee  answers  that  he  owes  the  defendant  a 
stated  sum  on  account,  the  attaching  creditor  may  hold  him 
to  it.  If,  on  the  other  hand,  he  should  honestly  state  that  he 
believes  that  he  is  indebted  to  the  defendant  on  account  but 
that  he  cannot  approximate  the  amount  without  a  settlement, 
he  ought  to  be  discharged. 

§  522.  Suppose  the  garnishee  should  answer  that  he  is  in- 
debted now  to  the  defendant  but  that  he  holds  the  note  of 
the  defendant  to  an  amount  equal  to  the  debt,  though  the 
note  is  not  yet  due;  ought  he  be  ordered  to  pay  into  court 
for  the  benefit  of  the  attaching  creditor?*  He  ought  not  to 
be  put  into  a  worse  position  by  the  summons  than  he  occu- 
pied before  its  service ;  he  ought  not  be  obliged  thus  to  give  a 
fellow  creditor  a  preference  over  himself,  it  may  plausibly  be 
argued.  But  the  attaching  creditor's  claim,  if  already  due 
and  owing,  is  payable  now,  while  the  note  held  by  the  gar- 
nishee is  not.  If  the  note  has  some  years  yet  to  run,  why 
may  not  the  creditor  make  the  garnishee  pay  now  what  the 
defendant  is  competent  to  make  him  pay  now  in  the  absence 

1  Ronan  v.  Dewes,  17  Mo.  App.  306 ;  tect  himself.  Lynde  v.  Watson,  52 
Royer  v.  Fleming,  58  Mo.  438.  Vt.  648.     If  he  holds  an  insolvent  de- 

2  First  Baptist  Church  v.  Hyde,  40  fendant's  immature  note,  he  should 
111.  150.  no!;  be  charged  for  what  he  owes  the 

3  Thayer  v.  Partridge,  47  Vt  423.        defendant,  but  may  retain  it  to  pro- 
*  In  Vermont,  under  statute,  held    tect  himself.     Schuler  v.   Israel,  12l> 

that  he  could  retain  enough  to  pro-    U.  S.  506, 


§§  523,  524.]  DEFENSES    STATED    IN   ANSWER.  371 

of  the  attachment?  In  case  the  creditor's  claim  is  not  yet 
due,  it  would  seem  that  he  ought  to  be  given  no  advantage 
over  the  garnishee ;  nor  ought  he  have  an}'-,  if  the  note  of  the 
defendant  to  the  garnishee  is  very  nearly  due;  nor  when  the 
order  to  pay  into  court  would  work  great  hardship ;  but,  unless 
such  or  like  circumstances  are  made  to  appear,  there  seems 
to  be  no  protection  for  the  garnishee  in  the  absence  of  statute 
exemption  in  such  case. 

§  523.  The  debtor's  non-residency  and  insolvency,  when 
the  garnishee  owes  him  a  definite  sum  yet  has  a  good  claim 
for  unliquidated  damages  for  breach  of  contract,  afford  groyind 
for  the  exercise  of  equitable  jurisdiction  to  stay  an  order  at 
law  charging  the  garnishee  till  the  damages  due  him  be  ascer- 
tained and  set  off  against  the  definite  sum  he  owes.' 

The  garnishment  of  the  principal  defendant's  debtor  is  no 
reason  why  he  may  not  intervene  when  he  has  an  interest  to 
be  served  by  his  doing  so,  and  none  why  he  may  not  bring  a 
separate  attachment  suit  if  the  attachment  defendant  really 
owes  him,  and  there  is  statutory  ground  for  the  remedy.' 

If  an  attorney  holds  a  note  and  mortgage  of  the  defendant 
on  which  he  claims  a  fee  and  a  lien,  a  receiver  may  be  ap- 
pointed to  collect  the  note  and  mortgage  under  general  stat- 
utory authority  to  make  any  proper  orders.^ 

§  524.  It  must  appear  from  the  answer  of  the  garnishee  (or 
others  proofs  where  allowable)  that  he  is  I'able,  or  he  should 
be  discharged.* 

One  who  has  paid  as  garnishee  without  disclosing  the  fact, 

1  North  Chicago  Rolling  Mill  Co.  v.  *  Richards  v.  Stephenson,  99  ]Mass. 
St  Louis  Ore,  etc.  Co.,  152  U.  S.  596,  311 ;  Laughran  v.  Kelly,  8  Cush.  199; 
14  Sup.  Ct.  Reporter,  710,  reversing  Porter  v.  Stevens,  9  id.  530 ;  Clin- 
30  Fed.  308.  ton  Nat.  Bank  v.   Bright,  126  Mass. 

2  Rodrigues  v.  Trevino,  54  Tex.  198 ;  535 ;  Regan  v.  Pac.  R.  R  Co.;  21  Mo. 
Adour  V.  Seeligson  &  Co.,  id.  594;  34;  Cairo,  etc.  R.  R  Co.  v.  Killen- 
Allen  V.  Hall,  5  Met  (Mass.)  263 ;  berg,  82  III.  275 ;  Williams  v.  Housel, 
Lewis  V.  Harvvood,  28  Minn.  428;  2  Ln.  154 ;  Smith  v.  Clarke,  9  id.  241 ; 
Coone  V.  Brauu.  23  id.  239;  Allen  v.  Farwell  v.  Howard,  26  id.  381;  Dris- 
Megguire,  15  Mass.  490;  Peck  u.  Strat-  coll  v.  Hoyt  11  Gray,  404;  Fay  v. 
ton,  118  id.  406;  Bailey  v.  Ross,  20  Sears,  111  Mass.  154;  Lorman  i-.  Phoe- 
N.  H.  302 ;  Romagosa  v.  Nodal,  12  La.  nix  Ins.  Co.,  33  Mich.  65 ;  Hackley  v. 
Ann.  341.  Kauitz,  39  id.  398;  Sexton  v.  Amos, 

3  Gary  v.  Brown,  33  111.  App.  435.  id.  695. 


372  garnishee's  disclosuke.  [§  525. 

within  his  knowledge,  that  the  debt  had  been  assigned,  may 
be  made  to  pay  again  to  the  assignee.^ 

A  garnishee  should  not  be  discharged  because  he  has  been 
notified  of  an  assignment  and  has  disclosed  that  fact,  if  the 
good  faith  of  the  assignment  is  questioned.  In  such  case  the 
assignee  may  and  should  be  made  a  party,  in  Rhode  Island.- 
In  "Wisconsin  third  persons  are  cited  and  made  parties  when 
the  garnishee  discloses  that  what  he  has  or  owes  is  claimed 
by  them ;  ^  but  when  he  had  answered  that  property  which 
he  held  lelonged  to  third  persons,  he  could  not  therefore  have 
them  made  parties,  as  the  disclosure  did  not  bring  them  within 
the  statute.* 

§  525.  Offset. —  He  may  plead  set-off,^  but  not  as  adminis- 
trator when  garnished  in  his  private  capacity ;  ^  nor  as  joint 
creditor  of  the  principal  defendant  when  his  co-creditor  is 
not  garnished;^  nor  as  a  fiduciary;  ^  nor,  in  some  states,  as  a 
merely  equitable  claimant.^  It  has  been  held  that  the  claim 
pleaded  by  the  garnishee  as  set-off  must  have  arisen  upon 
contract,^**  but  there  are  different  shades  of  opinion.'^  It  may 
have  arisen  after  the  garnishee  was  summoned,  if  upon  con- 
tract made  before,  in  some  states.'^ 

1  Wardle  v.  Briggs,  131  Mass.  518 ;  Nickerson    v.    Cliase,    123    id.    296 ; 

Whipple  V.  Robbins,  97  id.  107 ;  But-  Wheeler  v.   Emerson,  45  N.  H.  526 ; 

ler  V.  Mullen,  100  id.  453 ;  Randall  v.  Beach  v.  Viles,  2  Pet.  675 ;  Smith  v. 

Way,  111  id.  506 ;  Wilkenson  v.  Hall,  Stearns,  19  Pick.  20 ;  Nesbitt  v.  Camp- 

6  Gray,  568 ;   Millekin  v.  Loring,  37  bell.  5  Neb.  429. 

Me.  408 ;    Colvin  v.   Rich,  3   Porter,  6  Woodward  v.  Tupper,  58  N.   H. 

175 ;  Stockton  v.  Hall,  Hardin,  160 ;  577. 

Johns  V.  Field,  5  Ala.  484 ;  Marsh  v.  7  Gray  v.  Badgett,  5  Ark.  16;  Wells 

Davis,  24  Vt.  363;  Seward  v.  Heflin,  v.    Mace,   17  Vt.   503;  Blanchard  u 

20  id.  144 ;  Prescott  v.  Hull,  17  Johns.  Cole,  8  La.  160 ;  Norcross  v.  Benton, 

284;  Greentree  v.  Rosenstock,  61  N.  38  Pa.  St.  217. 

Y.  583;  Bunker  v.  Gilmore,  40  Me.  ^Fox  v.  Reed,  3  Grant,  81. 

88.     See  Landry  v.  Chayret,  58  N.  H.  9  Loftin  v.  Shackleford,  17  Ala.  455 ; 

89;  Chesley  v.  Coombs,  id.  142;  Col-  Weller  v.  AVeller,  18  Vt.  55;  Roy  v. 

man  v.  Scott,  27  Neb.  77 ;  Davis  Lum-  Tim,  103  Pa.  St.  115. 

ber  Co.  v.  Bank,  84  Wis.  1.  lO  Johnson  v.  Howard,  41  Vt.  122 ; 

2Hanaford  v.  Hawkins  (R.  I),  28  Hibbard  v.  Clark,  56  N.  H.  155. 

A.  605;  Pub,  Stat.  R.  I,  c.  204,  §  34;  n  Perry  v.  Washburn,  20  Cal.  318; 

Railroad  Co.  v.  Payne,  29  Gratt.  502.  Shaw  v.  Peckett.  26  Vt.  482 ;  Pierce  v. 

3  Wis.  Rev.  Stat.,  §  2767.  Boston,  3  Met.  520 ;  Camden  v.  Allen, 

4  Davis  Lumber  Co.  v.  Bank,  84  2  Dutch.  398 ;  Mayhew  v.  Davis,  4 
Wis.  1.  McLean,  213. 

5  Lannan  v.  Walter,  149  Mass.   14 ;  i-  Boston,  etc.  R.  Co.  v.  Oliver,  32 


§  526.]  ,  DEFENSES    STATED    IN    ANSWER.  373 

• 

A  garnishee  may  set  off  a  debt  due  him  on  breach  of  con- 
tract by  defendant,  though  it  be  secured  to  him  by  bond.^ 

The  garnishee  may  set  off  the  amount  of  a  claim  against  the 
defendant,  not  negotiable,  which  he  has  assigned  before  being 
summoned  —  the  assignee  agreeing  to  hold  the  claim  for  the 
benefit  of  others.^  If  he  could  plead  such  claim  as  a  set-off 
in  a  suit  by  the  attachment  defendant,  he  can  plead  it  as  gar- 
nishee; and  he  is  chargeable  for  the  balance  of  debt  only.^ 

But  he  cannot  offset,  against  a  fund  liable  to  attachment  in 
his  hands,  an  account  assigned  to  him  against  the  defendant 
when  the  latter  has  not  assented  to  the  assignment  and  agreed 
to  pay  the  garnishee.^  If  his  liability  to  the  defendant  de- 
])ends  upon  settlements  first  to  be  made  with  others,  and 
cannot  be  previously  ascertained,  he  should  be  discharged.^ 
If  it  is  upon  notes  not  due,  judgment  may  be  suspended  till 
the  debt,  acknowledged  in  the  answer,  comes  to  maturity.^ 

If  he  denies  indebtedness  on  a  note  made  by  him  to  a  hus- 
band by  mistake,  as  his  debt  was  to  the  wife,  he  cannot  be 
charged  in  a  suit  against  the  husband."  But  when  a  note  had 
been  given  to  the  wife,  and  transferred  to  the  husband,  the 
garnishee  who  denied  indebtedness  and  failecl  to  state  the 
transfer  was  charo^ed  in  a  suit  against  the  husband.^ 

§  526.  Joint  contractors,  summoned  as  garnishees,  may  set 
off  in  the  attachment  proceedings  their  separate  claims  against 
the   defendant.^     Offset  pleaded   in   answer   against  several 

N.  H.  172;  Boardman  v.  Cusliing,  13        2  Nutter  v.  Framingham  &  Lo%veIl 

id.  105 ;  Boston  Type  Co.  v.   Morti-  E.  R.  Co.  &  Trustee,  132  Mass.  427. 
mer,  7  Pick.  166;  Farmers'  &  Mer-        3  Hathaway  v.    Russell,   16    Mass. 

chants'  Bank  v.  Franklin  Bank,  31  473 ;  Allen  v.  Hall,  5  Met.  263 ;  Green 

Md.  404.     Contra,  Self  v.  Kirkland,  v.  Nelson,  12  id,  567;   Boston   Loan 

24  Ala.  275 ;  Edwards  v.  Delaplaine,  and  Trust  Co.  v.  Organ  (Kau.),  36  P. 

2  Harr.  322 ;  Dyer  v.  McHenry,  13  la.  733. 

527;    Parsons  u.    Root,   41   Ct.    161;        ^  Soule  r.  Ice  Co.,  85  Me.  166 ;  Stev- 

Pennell  v.   Grubb,   13  Pa.    St.   552;  ens  r.  Lunt,  19  Me.  70. 
Ingalls  V.   Dennett,   6  Me.   79 ;  Sea-        ^  Durling  v.   Peck,   41   Minn.  317. 

mon  V.  Bank,  4  W.  Va.  305 ;  Taylor  See  Carter  v.  Webster.  65  N.  H.  17. 
V.  Gardner,  2  Wash.  C.  C.  488 ;  Siev-        «  Hobson  v.  Hill,  87  Mich.  187. 
ers  V.  Woodburn,  etc.,  43  ^Mich.  275.        "^Gordin  r.  Moore,  62  Miss.  493. 

1  Johnson  v.  Geneva  Pub.  Co.  (Mo.),        ^  Dodds  v.  Gregory.  61  Miss.  351. 
26  S.  W.  676;  Barnes  r.  McMuIlin.s,        "Hathaway    r.    Russell,    16   Mass. 

7s  Mo.  260;  Doyle  v.  Gray,  110  Mass.  473;  IManuf.  Bank  v.  Osgood,  12  Me. 

206.  117 ;  Brown  v.  Warren,  43  X.  H.  430, 


314:  garnishee's  disclosure.  [§§  527-529. 

plaintiffs  will  not  be  allowed  after  the  garnishee,  v/ithout 
amending  his  answer,  has  admitted  on  trial  that  the  set-off  is 
only  against  some  of  the  plaintiffs.^  If  there  is  admission  of 
indebtedness  in  the  answer,  qualified  by  the  statement  that 
the  defendant  owes  the  garnishee  a  greater  sum,  the  attach- 
ing creditor,  opposing  the  allowance  of  the  set-off  on  the 
ground  that  it  is  not  yet  due,  has  the  burden  of  proof.-  The 
garnishee  cannot  successfully  plead  a  prescribed  claim  as 
offset.' 

§  537.  Stating  claims  of  tliird  2>ersons  or  himself. —  The  gar- 
nishee, for  his  own  protection,  should  defend  against  any , 
illegal  attempt  to  make  him  pay  into  court  what  belongs  to 
some  person  other  than  the  defendant.*  Though  the  case 
might  be  such  that,  in  case  of  subsequent  recovery  from  him 
by  the  wronged  owner,  he  could  make  the  plaintiff  reimburse 
him,'^  yet  his  right  to  do  so  will  depend  upon  his  proper  dis- 
closure of  the  facts  when  answering  as  garnishee. 

AVhen  he  discloses  that  the  property  he  holds  is  claimed  by 
a  third  person,  tlie  latter  must  be  summoned  and  made  a 
party,  in  Alabama,  before  the  garnishee  can  be  charged." 
Ordinarily,  if  the  answer  is  that  the  property  (or  fund  or 
credit  sought  to  be  reached)  belongs  to  a  third  person,  the 
garnishment  is  discharged.^ 

§  528.  An  issue,  between  the  attachment  defendant  and  an 
intervening  claimant,  of  the  property  attached  in  the  gar- 
nishee's hands,  should  be  tried  on  evidence  adduced  by  the 
parties,  as  in  ordinary  contests  about  right  of  property.^  The 
intervention  may  be  to  claim  money  attached  in  the  gar- 
nishee's hands,®  when  it  should  be  tried  as  ordinarily  between 
contending  parties.  The  intervention,  however,  comes  too  late 
when  the  garnishee  has  been  charged  and  the  sale  ordered."* 

§  529.  If,  in  defending,  the  garnishee  should  claim  to  be  the 
owner  of  the  thing  sought  to  be  subjected  to  the  process  of 

1  Story  V.  Kemp,  55  Ga.  276,  "Cram  v.  Shackleton,  64  N.  H.  44. 

2  Cuney  v.  National  Bank  of  Au-  ^  Leslej'  v.  Godfrey  (Minn.),  56 
gusta,  53  Ga.  28,  N.  W.  818;  Smith  v.  Barclay  (Minn.), 

3  Wadleigh  v.  Jordan,  74  Me.  483.  55  N.  W.  827. 

4  Pounds  V.  Hamner,  57  Ala.  842.  i^Kean  v.  Doerner,  62  Md.  475. 

5  Hays  V.  Anderson,  57  Ala.  374.  lo  Hey  ward    v.  Man.   Co.,   97    Ala. 

6  Edwards  v.  Levisohn,  80  Ala.  447 ;  533. 
Ala.  Code,  gg  3221,  3302-3. 


§§  530,  531.]       DEFENSE    FOK    ABSENT   DEFENDANT.  375 

attachment,  the  question  is  whether  his  right  is  superior  to 
that  of  the  attaching  creditor.  If  he  is  really  the  owner,  and 
so  answers,  and  that  fact  is  established,  the  creditor  of  the  de- 
fendant could  not  maintain  the  garnishment.  But  the  validity 
of  the  garnishee's  title  to  property  in  his  custody  when  he 
claims  to  be  the  owner  cannot  be  adjudicated  on  a  rule  trav- 
ersing his  answer.  Such  an  issue  can  only  be  passed  upon  in 
a  direct  suit.^  He  may  intervene.-  Defenses,  involving  ques- 
tions of  law  and  fact,  have  been  allowed  to  be  made  in  a  cir- 
cuit court  when  they  had  been  omitted  on  trial  before  a 
justice  court.^ 

Y.  Defense  for  Absent  Defendant. 

§  530.  What  slioidd  le  stated. —  Though  the  garnishee  is 
disinterested  in  the  result  of  the  suit  between  the  plaintiff  and 
the  defendant,  he,  to  protect  himself,  may  be  obliged  to  set 
up  against  the  garnishment  such  defenses  as  the  defendant 
would  have  the  right  to  urge  affirmatively  against  the  gar- 
nishee in  a  subsequent  action.  He  may  do  so  though  he  is 
himself  in  default  and  charged.*  If  the  defendant  has  already 
satisfied  the  attaching  creditor's  claim,  and  the  fjarnishee 
knows  that  fact,  he  ought,  for  his  own  sake  as  well  as  that  of 
the  defendant,  to  urge  it  by  way  of  exception  or  answer  to 
the  garnishment.  If  for  any  reason  the  creditor  no  longer 
has  any  claim  against  his  former  debtor,  the  garnishee  should 
not,  by  the  payment  of  what  he  owes,  or  the  delivery  of  what 
he  holds,  put  the  defendant  to  trouble  in  regaining  what  he 
truly  owns. 

If  the  answer  is  a  denial  of  indebtedness  to  the  defendant, 
and  denial  of  possession  of  any  property  of  his,  the  plaintiff, 
acquiescing  therein,  and  having  made  no  direct  seizure,  has  no 
attachment  suit ;  and  if  be  proceeds  against  the  defendant,  the 
action  is  only  personal.' 

§  531.  Not  technical  objections. —  When,  by  reason  of  the 
absence  of  the  defendant  or  other  cause,  the  garnishee  is 

1  Ivens  V.  Ivens,  30  La.  Ann.  (Part  « Chicago,  etc.  R.  Co.  v.  Meyer,  117 
I.)  249.   See  Larey  r.  Baker,  85  Ga.  087.  Ind.  563. 

2  Edwards  v.   Cosgro,  71   la.  296;        <  pjnyan  r.  Berry,  52  Ark.  130. 
Wynne  v.  State  Bank,  82  Tex.  37S;        5Littlejolm  v.  Lewis.  32  Ark.  423; 
Moursund  v.  Priess,  84  id.  554.  Leiugardt  v.  Deitz,  30  id.  224. 


376  garnishee's  disclosure.  [§  532. 

obliged  to  defend  the  principal  suit  for  his  own  future  pro- 
tection, he  may  urge  whatever  defense  upon  the  merits  the 
defendant  might  have  urged,  and  he  may  demur  or  except 
to  the  action,  especially  on  jurisdictional  grounds;^  but  he  is 
not  bound,  in  order  to  his  own  future  protection,  to  set  up 
merely  technical  obstructions  and  defenses.  When  he  an- 
swers and  is  examined  in  the  presence  of  the  defendant  he  is 
not  only  relieved  from  the  necessity  of  raising  technical  objec- 
tions, but  he  is  precluded  from  making  such  points  as  that  the 
sheriff's  return  was  not  properly  indorsed  or  that  the  garnish- 
ment service  was  on  but  one  of  two  partners.-  No  rigid  rule 
can  be  laid  down,  however,  as  to  the  latitude  the  garnishee 
may  take  for  his  own  protection  in  defending  the  principal 
suit  in  the  absence  of  the  defendant.  Even  amendable  errors 
may  be  of  such  a  character  that  exception  to  them  would  be 
of  the  highest  importance;  for,  to  hold  him,  the  attachment 
proceedings  must  be  valid.*  But  garnishees  who  have  ad- 
mitted joint  liability  cannot  afterwards  complain  that  such 
liability  had  not  been  averred  in  the  plaintiff's  affidavit.* 

§  532.  If  the  defendant  has  confessed  judgment  the  gar- 
nishee cannot  defend  the  principal  suit,  being  fully  protected 
against  any  future  attack  by  the  defendant  and  perfectly  safe 
in  paying  into  court  under  order.^  He  should  not  be  made  a 
party  to  a  feigned  issue.^ 

As  a  general  rule  the  garnishee  is  not  bound  to  notice  mere 
irregularities  of  procedure  against  the  defendant;  nor  to  de- 
fend the  main  suit  when  the  defendant  is  in  court  or  under 
summons ;  he  is  not  so  bound  when  the  court  is  vested  with 

iBeaupre  v.  Keefe,  79  Wis.  436;  Houston  n  Porter,  10  Ired.  174;  Ax- 
Frisk  V.  Reigelman,  75  id.  499 ;  Hea-  tell  v.  Gibbs,  52  Mich.  640 ;  Iron  Cliffs 
ley  V.  Butler,  66  id,  9 ;  McCloon  v.  Co.  v.  Lahais,  52  id.  394 ;  Laidlaw  v. 
Beattie,  46  Mo.  891 ;  Simmons  v.  Mo.  Morrow,  44  id,  547. 
R  Co.,  19  Mo.  App,  542;  Chicago,  4  QoII  u  Hubbell,  61  Wis.  293;  Be- 
etc.  R,  Co,  V.  Mason,  11  111.  App,  525,  vier  v.  Dillingham,  18  id.  529,     See 

2  At  least  it  was  so  held  in  Bush-  Miller  v.  Richardson,  1  Mo,  310 ; 
nell  V.  Allen,  48  Wis.  460  —  the  stat-  Whitney  v.  Munroe,  19  Me.  42,  as  to 
ute  in  Wisconsin  requiring  the  sum-  garnishee's  liability  to  two  persons 
mons  in  garnishment  to  be  served  on  jointly  when  only  one  is  sued, 

the  principal  debtor.     See  Mooney  v.  ^  Bartlett  v.  Wilbur,  53  Md,  485. 

Union  Pac.  R.  R.  Co,,  60  la.  346,  cpish  v.   Keeney,  91   Pa.   St.  138. 

3  Gowan  v.  Hansom,  55  Wis,  341 ;  See  Everton  v.  Powell,  3  Wash.  State, 
Pope  V.  Insurance  Co.,  24  Ohio  St.  481 ;  331 ;  Wash,  Code,  §g  385,  386. 


§  532.] 


DEFENSE    FOR    AnSENT    DEFENDANT. 


jurisdiction  over  both,  nor  is  he  interested  in  doing  so,  since 
the  decree  of  the  court  would  protect  him  from  a  future  suit 
for  funds  paid  over  or  property  delivered  under  judicial  order 
to  him  as  garnishee.^ 

The  defendant  present  may  defend  on  any  ground  the  gar- 
nishee could  have  urged  for  him  in  his  absence.  In  Wiscon- 
sin  he  may  move  to  set  aside  the  garnishment  on  the  ground 
that  the  attaching  creditor  knew  that  he  had  sufficient  prop- 
erty liable  to  direct  attachment.  This  he  may  do,  it  is  said, 
though  insolvent  and  about  to  assign  to  creditors.^  It  is  held 
in  Missouri  that  the  garnishee  cannot  object  that  publication 
was  irregularly  made.^  He  cannot  successfully  object  to  a 
judgment  against  the  defendant  when  it  does  not  concern 
himself  or  the  jurisdiction.*  He  cannot  object  when  he  has 
denied  indebtedness.^ 

In  Wisconsin  if  the  defendant  is  not  served  within  ten  days 
the  garnishment  proceeding  is  void ;  and  a  subsequent  gar- 
nishor mav  have  it  dismissed  on  that  ground.^ 


1  Montgomery  Gas  Light  Co.  v. 
Merrick,  61  Ala.  534 ;  Flash  v.  Paul, 
29  id.  141:  Gunn  v.  Howell,  35  id, 
144;  Thompson  v.  Allen,  4  Stew,  & 
Port  184;  Stebbins  v.  Fish,  1  Stew. 
180;  Parmer  v.  Ballard,  3  id.  326; 
Smith  V.  Chapman,  6  Port  365; 
Singer  r.Townsend,  53  Wis.  126,  226 ; 
Houston  V.  "Wolcott,  1  la.  86 ;  Strong 
V.  Hollon,  39  Mich.  411;  White  v. 
Casey,  25  Tex.  552 ;  Douglass  v.  Neil, 
37  id.  528 ;  Pierce  v.  Carlton,  12  III. 
358 ;  Allen  v.  Watt,  79  id.  284 ;  Corn- 
well  V.  Huugate,  1  Ind.  156 ;  Scott  v. 
Hawkins,  99  Mass.  550;  Knights  v. 
Paul,  11  Gray,  225;  Chambers  v.  Mc- 
Kee,  1  Hill  (S.  C),  229;  Lindau  v. 
Arnold,  4  Strobhart,  290  ;  Cannaday 
V.  Detrick,  63  Ind.  485 ;  Foster  v. 
Jones,  15  Mass.  185;  Chamberford  v. 
Hall,  3  McCord,  345 ;  Erwin  v.  Heath, 
50  Miss.  795 ;  Benson  v.  Hollaway,  59 
id.  358;  Kellogg  v.  Freeman,  50  id. 
157 ;  Saddler  v.  Prairie  Lodge,  id.  572 
Heffernan  r.  Grymes,  2  Leigh,  512 
Atcheson   v.  Smith,  3  B.  Mon.  502 


Shealey  v.  Toole,  56  Ga.  210;  White- 
head V.  Henderson,  4  Sm.  &  M.  704 ; 
Matheny  v.  Galloway,  12  id.  475 ;  St. 
Louis  Per.  Ins,  Co.  v.  Cohen,  9  Mo. 
421 ;  Campbell  v.  Nesbitt  7  Neb.  300; 
Hanna  v.  Lauring,  10  Martin  (La.). 
563 ;  Brode  v.  Firemen's  Ins.  Co.,  8 
Rob.  (La.)  244;  Lee  v.  Parmer,  18  La, 
405;  Wilson  v.  Burney,  8  Neb,  39; 
Delby  t\  Tingle}',  9  id.  412 ;  Lomer- 
son  V.  Hoffman,  4  Zab.  674 ;  Bank  of 
Northern  Liberties  v.  Muuford,  3 
Grant,  232 ;  Gray  v.  Del.  &  Hudson 
Canal  Co.,  5  Abb.  N.  Cas.  131, 

2  German  American  Bank  v.  Butler 
(Wis.),  58  N.  W,  746;  Wis,  Rev.  Stat, 
§g  2753,  2765. 

3  Freeman  v.  Thompson.  53  Mo.  183 ; 
Kane  v.  ^IcCown,  55  id.  181 ;  Hol- 
land V.  Adair,  55  id.  40 ;  Johnson  v. 
Gage,  57  id.  160,  See  Newman  v. 
Manning,  89  Ind,  422, 

4  Henny  i",  Patt  73  la.  485. 

5 Bank  v.  Haiman,  80  Ga.  624. 
6  Globe  Milling  Co.  v.  Hansen  (Wis,), 
59  N.  W,  132. 


378  garnishee's  disclosure.  [§§  533,  53 i. 

Yl.  Amended  Answer. 

§  533.  Sufficient  cause. —  An  answer  to  interrogatories  may 
be  amended  by  the  garnishee  upon  sulBcient  cause  shown.^ 
Sufficient  cause  is  the  subsequent  discovery  of  a  mistake  made 
in  the  the  first  response  or  tlie  knowledge  of  some  new  and 
important  fact,  or  even  newly  acquired  information  concern 
ing  his  rights  under  the  law  touching  matters  about  which 
his  answers  are  voluntary  and  will  charge  him  if  given  but 
which  he  is  not  legally  obliged  to  give.  What  would  subject 
him  to  two  payments  may  be  recalled  by  an  amended  answer. 
What  would  bind  him  and  yet  was  withheld  in  his  first  an- 
swer should  be  given  by  wa}?"  of  amended  answer,  for  con- 
science sake. 

§  534.  Liberal  treatment. —  When  the  right  of  amending 
is  drawn  into  question  it  should  be  remembered  that  the 
garnishee's  answer  is  to  be  more  liberally  treated  than  the 
pleadings  of  the  parties  to  the  main  suit.  He  is  no  party  to 
that,  though  a  side  contest  may  arise  between  him  and  the 
attaching  creditor ;  certainly  he  is  no  party  in  the  fight  be- 
tween the  plaintiff  and  the  defendant;  he  is  no  intervenor, 
nor  warrantor,  nor  third  party  of  any  sort.  He  cares  nothing, 
or  should  care  nothing,  or  is  legally  supposed  to  care  nothing, 
about  the  issue  of  the  suit.  If  he  has  not  told  all  or  has  told 
too  much,  why  should  he  not  be  allowed  to  correct  his  state- 
ment as  a  witness  is  so  allowed?  No  court  should  deny  him 
the  right  unless  he  has  forfeited  confidence  by  cunning,  trick- 
ery, prevarication  and  question-dodging.  Suppose  a  witness 
to  apply  to  the  court  for  leave  to  correct  erroneous  statements 
in  his  testimony:  would  any  tribunal,  intent  only  upon  sub- 
serving the  ends  of  justice,  refuse  the  request,  if  made  within 
due  time  during  the  process  of  the  investigation,  if  the  witness 
has  proved  honest  in  the  first  instance  but  has  subsequently 
discovered  an  error?  Even  upon  the  application  of  one  of  the 
parties  to  the  cause,  the  court  would  be  likely  to  allow  the 
witness  to  be  recalled  on  such  a  showing;  how  much  more 
readily  should  the  application  of  the  disinterested  witness 
himself  be  successful?  The  analogy  of  position  between 
the  witness  and  the  gcxrnishee  is  such  that  the  same  reasons 

1  Simon  v.  Ash,  1  Tex.  Civ.  App.  202 ;  Soule  v.  Ice  Co.,  65  Me.  166. 


§§  535,  536.]  A-'TENDED    ANSWEK.  37'.) 

apply  in  the  one  case  as  in  the  other  for  allowing  answers  to 
be  amended,  with  the  additional  one  in  favor  of  the  latter 
that  the  court  should  protect  him  from  erroneously  and  inno- 
cently causing  loss  and  injury  to  himself,  where  the  first  an- 
swers tend  to  wrong  him  in  that  way.^ 

§  535.  Courfs  discretion. —  Courts  have  it  in  their  discretion 
to  allow  amendments  or  not;  but  it  is  a  discretion  under  ju- 
dicial duty  —  a  discretion  similiar  to  that  which  he  has  in 
deciding  a  cause  for  the  one  party  or  for  the  other.  If  the 
garnishee  has  fully  done  his  duty,  and  yet  has  made  an  erro- 
neous statement  which  he  prays  leave  to  correct,  it  is  the  duty 
of  the  court  to  grant  the  prayer. 

In  the  exercise  of  discretion,  the  court  may  either  grant  or 
refuse  an  application  to  amend,  after  a  rule  has  been  taken  to 
have  the  answered  interrogatories  taken  as  confessed.-  But  if 
something  has  happened  subsequently  to  the  original  answer 
which  renders  it  a  matter  of  justice  that  amendment  be  allowed, 
the  court  should  not  refuse  it.  For  instance,  if  the  garnishee 
has  answered  that  he  owes  on  promissory  notes,  and  after- 
wards learns  that  they  had  been  assigned  before  he  was  gar- 
nished, he  cannot  be  refused  the  right  to  amend,  if  otherwise 
he  would  be  liable  to  pay  twice.'  Or,  if  he  has  acknowledged 
indebtedness  to  the  defendant,  and  afterwards  finds  that  the 
debt  had  been  assigned  before  the  service  of  the  writ  upon 
him,  thus  defeating  the  foreign  attachment,  he  should  be  al- 
lowed to  amend  as  of  right.^  He  may  make  a  supplemental 
disclosure.^ 

Amendments  to  an  answer  should  not  be  contradictory  of 
the  first  disclosure  when  it  has  acknowledged  liability,"  and 
they  may  be  refused  by  the  court  when  it  has  been  evasive.^ 

§  536.  Second  application. —  A  second  application  to  amend 
is  entitled  to  less  liberal  consideration  than  the  first,  though 
it  ought  to  be  granted  upon  sufficient  cause  being  shown.     It 

iKlauber  v.  Wright,  52  Wis,  303.  •»  Sweet  v.  Read,  13  R  I.  121. 

2  Milliken  r.  Mannheimer,  49  Minn.        5  Drake  v.  Lake  Shore,  etc.,  69  Mich. 
521.     Such  application  was  denied  as  168;    Lehman  v.   Hudman,  85   Ala, 
too  late  after  the  garnishee  had  ex-  135 ;  Carter  v.  Bush,  79  Tex.  29. 
cepted  to  a  rule  to  have  his  first  an-        6pi(_.kiei-  ^.^  naiue%',  4  Heisk.  335; 
swer  taken  pro  confesso.     Hennen  v.  Thomas  v.  Fuller.  26  La.  Ann.  625. 
Forget,  27  La.  Ann.  381.  'Tapp   v.  Green,  22  La.  Ann.  42; 

3  Lewis  V.  Dunlop,  57  Miss.  130,  Davis  v.  Oakford,  11  id.  379. 


oSO  garnishee's  disclosuue.  [§  537. 

is  impossible  to  fix  a  limit  till  reasons  for  amending  have  been 
exhausted,  except  that  the  reasons  should  be  new  ones,  and 
not  readily  knowable  before  the  previous  reply  or  replies. 
Common  sense  will  dictate  the  proper  course  in  every  case. 

§  537.  J^vidence.^The  effect  to  be  given  to  the  answer  is 
an  important  topic.  Here  is  a  disinterested  third  person, 
called  into  court  against  his  will,  interrogated  by  the  plaintiff, 
who  has  made  responsive  answers  to  all  such  legal  questions 
as  the  plaintiff  chose  to  expound  :  should  his  statement  not  be. 
conclusive?  Were  he  the  plaintiff's  witness  the  plaintiff  could 
not  contradict  him.  Whether  his  answers  be  affirmative  jr 
negative  the  defendant  has  no  interest,  or  right  or  business  to 
contradict  him.  Should  not  his  statement  be  conclusive  upon 
both  parties?  No.  He  is  not  a  witness.  The  plaintiff  had  no 
option  to  select  whom  he  might  choose  to  prove  the  fact  that 
the  defendant  had  money  or  goods  or  credits  subject  to  ex- 
amination. The  answers  can  have  no  bearing  upon  the  ques- 
tions at  issue  in  an  attachment  case.  They  have  no  bearing 
on  any  litigated  question  between  plaintiff  and  defendant  in 
any  case  or  in  any  stage  of  a  case.  The  garnishee  is  interro- 
gated because  he  is  supposed  to  owe  the  defendant  or  hold 
property  of  the  defendant  —  not  because  he  alone  knows  the 
fact.  He  is  summoned  that  he  may  answer  and  be  held  to 
pay  or  to  deliver,  under  order  of  court,  not  merely  to  give 
evidence;  and  the  facts  which  he  divulges  are  not  drawn  out 
by  the  plaintiff  contradictorily  with  the  defendant.  While 
the  garnishee,  from  his  own  standpoint,  may  ask  to  amend 
erroneous  statements  on  the  same  grounds  that  a  witness 
might  so  ask,  yet,  from  the  standpoint  of  the  plaintiff,  he  is 
not  to  be  deemed  a  mere  witness.  His  statements  may  there- 
fore be  traversed  by  the  plaintiff  without  infringing  the  rule 
that  inhibits  him  from  contradicting  his  own  witness.  The 
answers  are  not  conclusive  upon  him  unless  he  lets  them 
stand  unimpeached  and  uncontradicted.  But  he  may  attack 
them,  refute  them  by  evidence  alminde,  contradict  them,  ex- 
plain them,  eke  them  out,  prove  the  liability  of  the  garnishee 
in  spite  of  his  negative  replies,  and  hold  him  responsible  for 
such  judgment  as  he  may  recover  in  cases  where  the  proof 
shows  that  the  garnishee  has  goods  or  credits  in  hand  of  suf- 
ficient amount. 


§§  538,  539.]  TRAVERSE    OF   ANSWER.  381 

But  there  are  jnst  bounds  to  collateral  investigation  of  the 
facts.  Courts  will  not  let  a  new  lawsuit  be  injected  into  the 
one  at  bar.  TLvidcnce  aliunde  will  be  confined  to  the  question 
of  the  garnishee's  holding  credits  or  property  reachable  by 
execution  for  the  defendant's  debt. 

§  538.  Side  contests. —  During  a  contest  between  the  attach- 
ing creditor  and  another  person  for  funds  in  the  hands  of  the 
garnishee  they  should  not  be  paid  to  either  contestant  till  the 
dispute  has  been  decided.'  The  garnishee  cannot  pay  them 
to  an  assignee  of  the  defendant,  at  a  time  when  proceedings 
are  pending  by  the  attaching  creditor  against  such  assignee, 
for  the  judicial  settlement  of  such  contest,  if  the  garnishee 
has  knowledge  of  such  proceedings.  A  payment  to  the  trans- 
feree of  the  defendant,  under  such  circumstances,  would  be  at 
the  peril  of  the  garnishee.^  If  he  is  not  informed  of  the  trans- 
fer till  after  he  has  been  summoned,  he  should  disclose  his 
knowledge  of  it  in  his  answer.''  If  knowledge  of  it  comes 
after  answering,  he  should  be  allowed  to  amend  his  disclosure.* 
If  he  does  not  amend  he  will  be  charged.^  If  he  has  admit- 
ted indebtedness  to  a  transferee  who  is  subsequently  made  a 
party  defendant,  he  may  be  charged.^ 

YII.  Traverse  of   the  Answer. 

§  539.  Untraverscd  ansiver  final. —  Traverse  of  the  answer 
is  necessary,  if  the  plaintiff  is  unwilling  to  abide  the  disclosure, 
and  has  the  means  of  disproving  it;  for  the  disclosure  is  final 
unless  he  contests  it,  whether  it  be  a  positive  denial  or  an  ad- 
mission of  liability,^  or  if  it  does  not  appear  from  the  an- 

1  Sailer  v.  Insurance  Co.  of  North  16  Ala.  695 ;  Ferine  v.  George,  5  id. 
America,  62  Ala.  221.  641 ;  Wilder  v.  Shea,  13  Bush,  128 ; 

2  Id. ;  Larabee  v.  Knight,  69  Me.  Smith  v.  Bruner,  23  Miss.  508 ;  Flash 
320.  V.  Morris,  27  La.  Ann.  93 ;  Barnes  v. 

3  Tabor  u  Van  Vranken,  39  Mich.  Wayland,  14  id.  791;  Helme  v.  Pol- 
793.  lard,  id.   306;    Blanchard  v.  Vargas, 

4  Tracy  v.  McGarty,  12  R.  I.  168.  18  id.  486;  Oakey  v.  Railroad  Co.,  13 
0 Lewis  V.  Dunlop,  57  Miss.  130.  La.  570;  Stevens  v.  Gwathmey,  9  Mo. 
6  Bethel  v.  Chipraan,  57  Mich.  379.  636 ;  Davis  v.  Knapp,  8  id.  657 ;  Mc- 
"  Denver,   etc.   R    Co.  v.   Smeeton  Ree  v.  Brown,  45  Tex.  503 ;  Morse  v. 

(Colo.  App.),  29  P.  815 ;  Britt  V.  Brad-  Marshall,  22  la.  290 ;  Bebb  v.  Preston, 
shaw,  18  Ark.  530;  Mason  v.  Mc-  1  id.  400;  Maynard  v.  Coruwell,  3 
Campbell,  2  id.  506 ;  Jones  v.  Howell,     Mich.  309. 


382  garnishee's  disclosure.  [§  540. 

swer  that  the  garnishee  is  chargeable,^  though  he  may  not 
have  made  a  clear  denial,  he  may  be  entitled  to  discharge  on 
legal  grounds  notwithstanding  his  admissions.  As  discharge 
usually  is  final,^  the  plaintiff  should  be  allowed  his  oppor- 
tunity to  contest  before  the  order  of  discharge  is  entered.^ 
Such  order,  if  granted  prematurely,  may  be  revoked  on  good 
cause  being  shown,'*  and  then  the  plaintiff  may  contest. 

§  540.  Maldng  the  issue. —  The  plaintiff  may  contest  the 
disclosure  on  the  ground  that  it  is  insufficient,  or  that  it  is 
false.  The  first  ground  may  be  raised  by  demurrer  or  excep- 
tion to  the  answer  —  not  by  a  motion  to  strike  out,  unless  it 
is  frivolous.^  The  signature  of  the  plaintiff,  or  of  his  counsel, 
is  required  to  such  exception,  but  its  omission  is  not  fatal  if 
no  objection  be  made.^ 

The  question  of  the  truth  of  the  disclosure  is  raised  on  the 
plaintiff's  affidavit."'  It  should  be  filed  in  the  term  in  which 
the  answer  was  filed,  unless  the  court  has  extended  the  time.^ 
And  it  must  be  duly  certified.^  It  is  too  late  to  contest  in 
the  appellate  court.^"  In  Louisiana  the  right  of  traverse  is  lost 
if  not  exercised  within  the  limit  fixed  by  statute.^^ 

The  issue  tendered  by  the  plaintiff  is  met  by  the  garnishee 
in  such  way  as  the  statute  and  practice  of  the  state  require : 
in  some  states  by  demurrer,  when  the  affidavit  is  insuffi- 
cient, as  in  Alabama.^^  There  issue  must  be  joined ;  if  the 
garnishee  does  not  meet  the  issue  he  may  be  defaulted.^^    But 

1  Hackley  v.  Kanitz,  39  Mich.  398 ;  6  First  N.  Bank  v.  Eobertson  (Tex. 

Watson  V.  Kane,  31  id.  63 ;  Thomas  App.),  22  S.  W.  100 ;  Boreu  v.  Bilhng- 

u  Sprague,  12  id.  120 ;  Newell  u  Blair,  ton,  82  Tex.  137;  Hemming  v.  Zim- 

7  id.  103;  Cairo,  etc.  R.  Co.  v.  Killen-  merchitte,  4  id.  137. 

berg,  82  111.  295 ;  Nashville  v.  Potomac  ^  Donald  v.  Nelson,  95  Ala.  111. 

Ins.  Co.,  58  Tenn.  296.  8  Lindsay   v.   Morris,    supra;    AIn. 

2Turpin  v.  Coates,  13  Neb.  321.  Code,  §  2981 ;  Beckert  v.  Wbitlock, 

3  Banks  v.  Hunt,  70  Ga.  741 ;  Rail-  83  Ala.  123 ;  Opdyke,  Ex  parte,  03 
road   V.   Peoples,   31    Ohio  St.    537;  id.  70. 

Myers  v.  Smith,  29  id.  120 ;  Fearey  v.  9  Brake  v.  Curd,  etc.  Co.  (Ala.),  14 

Cummings,  41  Mich.  376.  So.  773 ;  Ala.  Code,  §  2981. 

4  McWilliamsu.  Chemical  Co.  (Ga.),  i"  Blackstone  v.  St  Louis,  etc.  R. 
17  S.  E,  669,  Co.,  44  Mo.  App.  555. 

■^Lindsay  v.  Morris  (Ala.),  13  So.       'i  Garcia  v.  Insurance  Co.,  31  La. 

619;  Security  Loan  Ass'n  v.  Weems,  Ann.  546. 
69  Ala.  584 ;  Burrus  v.  Moore,  63  Ga.       '2  Lindsay  v.  Morris,  supra. 
405;  Bartlett  v.  Wilbur,  53  Md.  485.       13  Lehman  v.  Hudson,  85  Ala.  135. 


§§  541,  542.]  TRAVERSE    OF    ANSWER.  383 

a  formal  rejoinder  is  not  necessary  everywhere ;  the  question 
raised  by  the  affidavit  contesting  the  answer  may  be  deemed 
at  issue  without  such  pleading,  as  in  Colorado.^ 

§  541,  Evidence. —  The  plaintiff  in  traversing  may  disprove 
the  disclosure  but  not  extend  it,  unless  authorized  by  statute.^ 
In  disproving  it  and  showing  the  garnishee's  liability  he  may 
introduce  evidence  as  in  an  ordinary  case.^  lie  may  offer  evi- 
dence tending  to  show  collusion  between  the  garnishee  and 
the  defendant  to  defeat  him,  and  their  declarations  are  ad- 
missible.^ The  evidence  must  be  confined  to  the  real  issue. 
The  answer  is  not  shaken  by  testimony  inconclusive  as  to  the 
garnishee's  previous  replies  to  unauthorized  questions.^  The 
attaching  creditor  cannot  prove,  against  the  garnishee  who 
is  a  grantee,  a  verbal  promise  (exacted  b}''  the  defendant  as 
grantor  as  the  condition  of  the  conveyance)  to  pay  such  cred- 
itor's claim  in  full,  when  the  instrument  of  conveyance  recites, 
as  consideration,  the  grantee's  promise  to  pay  all  the  creditors 
of  the  grantor  in  equal  proportion.^  But  he  may  prove  the 
garnishee's  admissions,  before  and  after  his  answer,  to  contra- 
dict it.^ 

§  542.  To  successfully  reach  a  fund  in  the  hands  of  a  gar- 
nishee the  attaching  creditor  must  have  the  admission  in  the 
answer  that  it  belongs  to  the  defendant;^  or  if,  in  the  absence 

1  Joues  V.  Langhorne  (Colo.),  34  P.  garnishee  (Cahoon  v.  Ellis,  18  Vt 
997;  Colo.  Code  (1887),  §  128.  500),  or  for  him.     Thomas  v.  Price, 

2  Raymond  v.  Narragansett  Co.,  14  30  Md.  483;  Warren  v.  Moore,  52  Ga. 
R.  I,  310 ;  Sweet  v.  Reed,  13  id.  121.  562.   May  they  not  be  allowed  in  evi- 

3  Kelley  r.  Weymouth,  68  Me.  197;  dence  to  discredit  the  disclosure? 
Gouch  V.  Tolman,  10  Cush.  104 ;  McKee  v.  Anderson,  35  Ind,  17 ;  Car- 
Leighton  v.  Heagerty,  21  Minn.  42 ;  roll  v.  Tinley,  26  Barb.  61. 
Donnelly  u  O'Connor,  22  id.  309 ;  '  Watson  v.  Montgomery  (Tex.),  16 
Bates  V.  Forsyth,  64  Ga.  232 ;  Baxter  S.  W.  541 ;  Palmer  v.  Gilmore,  148 
V.  Mo.  etc.  R.  Co.,  67  Barb.  283 ;  Rutter  Pa.  48.  Held,  garnishee  not  estopped 
V.  Boyd,  3  Abb.  New  Cas.  66 ;  McNeal  by  his  conversational  admissions. 
V.  Roach,  49  Miss.  436 ;  East  Line,  etc.  Warder  v.  Baker,  54  Wis.  49 ;  Almy 
R  Co.  V.  Terry,  50  Tex.  129.  v.  Thurber,  99  N.  Y.  407 ;  Henderson 

<Sommer  v.  Gilmore  (Pa.),  28  A.  v.  INIahill,  75  la.  217;  Starry  u  Korab, 

654;  Palmer  v.  Gilmore,  148  Pa.  St  65  id.  267.    Compare  Miller  r.  Ander- 

48.  son,  19  Mo.  App.  71. 

sQuinnr.  Blauck,  55  Mich.  269.  sparwell  v.  Howard,  26  la.   381; 

e  Murphy  v.  Caldwell,  50  Ala.  461.  Morse  v.  Marshall,  22  id.  292 ;  Church 
It  is  held  that  the  defendant's  decla-  v.  Simpson,  25  id.  410 ;  Pierce  v.  Carl- 
rations  are  inadmissible  against  the  ton,   12  111.  358 ;  Chase  v.   North,  4 


384 


GARNISHEE  S    DISCLOSUKB. 


[§  542. 


of  such  ad  mission,  he  may  offer  proof,  the  burden  is  on  him 
to  make  out  his  case.^ 

The  burden  is  upon  him  when  he  seeks  to  establish  any 
state  of  facts  different  from  that  disclosed  by  the  garnishee 
for  the  purpose  of  sustaining  the  garnishment.^  It  depends 
upon  the  same  principles  as  in  an  ordinary  contest,  except 
that  the  garnishee's  position  should  be  liberally  treated  be- 
cause of  his  absence  of  interest.^ 

Should  the  garnishee  plead  nulla  hona^  the  burden  of  proof 
would  be  on  the  plaintiff,^  if  allowed  to  traverse  such  answer. 
If  the  garnishee  admits  indebtedness  to  the  defendant  yet 
states  that  the  latter  owes  him  a  greater  sum,  a,nd  the  plaint- 
iff traverses  the  answer  and  alleges  that  the  debt  of  the  defend- 
ant to  the  garnishee  is  not  due  and  therefore  not  a  good  offset, 
the  burden  is  then  upon  the  plaintiff  to  prove  such  allegation.'^ 
The  presumption  is  not  in  favor  of  the  plaintiff,  in  a  question 
between  him  and  the  garnishee,  whether  the  latter  has  assets 
of  defendant  in  hand.^ 


Minn.  381;  Cairo,  etc.  E.  R.  Co.  v. 
Killenberg,  82  111.  395;  Banning  v. 
Sibley,  3  Minn.  389;  Pioneer  Print- 
ing Co.  V.  Sanborn,  id.  413;  Alle- 
ghany Savings  Bank  v.  Meyer,  59 
Pa.  St.  361;  Williams  v.  Jones,  43 
Miss.  370;  Lorman  v.  Phoenix  Ins. 
Co.,  33  Mich.  67 ;  Fisk  v.  Weston,  5 
Me.  410. 

1  Hewitt  V.  Wagar  Lumber  Co.,  38 
Mich.  701 ;  McNeill  v.  Roache,  49  Miss. 
436. 

2  Field  V.  Malone,  103  lud.  351; 
Lane  v.  Felt,  7  Gray,  491 ;  Caldwell 
V.  Coates,  78  Pa.  St.  313 ;  East  Line, 
etc.  R.  R.  Co.  V.  Terry,  50  Tex.  129 ; 
Bates  V.  Forsyth,  64  Ga.  332 ;  Sheldon 
V.  Hinton,  6  111.  App.  316 ;  Perea  v. 
Colo.  N.  Bank  (N.  M.),  37  P.  332; 
Schuber  v.  Simmons,  3  Tex.  Civ.  App. 
673;  Brown  v.  Gummersell,  30  Mo. 
App.  341 ;  Caldwell  v.  Silver,  23  id. 
417;  Reagan  v.  Pacific  Railroad,  31 
Mo.  30. 

3  East  Line,  etc.  R.  R.  Co.  v.  Terry, 
60    Tex.    129;    Porter  v.   Stevens,   9 


Cush.  530 ;  Lane  v.  Felt,  7  Gray,  491 ; 
Laschear  v.  White,  88  111.  43 ;  Dris- 
coll  V.  Hoyt,  11  Gray,  404;  Richards 
V.  Stephenson,  99  Mass.  311 ;  Sheldon 
V.  Hinton,  6  111.  App.  216 ;  Lomerson 
V.  Huffman,  1  Dutcher,  635 ;  Row- 
land V.  Plummer,  50  Ala.  183 ;  Hunt 
V.  Coon,  9  Ind.  537;  Williams  v. 
Housel,  3  la.  154 ;  Farwell  v.  Howard, 
36  id.  381 ;  Reagan  v.  Pac.  R.  R.  Co., 
31  Mo.  30;  Karnes  v.  Pritchard,  36 
id.  135.  See  Hamilton  v.  Buggy  Co. 
(la.),  55  N.  W.  497. 

4  Caldwell  v.  Coates,  78  Pa.  St.  312. 

^Cuny  V.  The  National  Bank  of 
Augusta,  53  Ga.  28.  It  has  been  held 
that  the  garnishee  may  be  compelled 
to  exhibit  his  accounts.  Request  v. 
Steamer,  13  La.  Ann.  210.  See  Rhine 
V.  Railroad  Co.,  10  Phila.  336 ;  Stru- 
ber  V.  Klein,  17  Phila.  13.  The  plaint- 
iff may  plead  prescription  against  the 
garnishee's  offsets.  Holt  v.  Libby, 
80  Me.  339. 

6  Rowland  v.  Plummer,  50  Ala.  183  ; 
Hutchins  v.  Havvley,  9  Vt.  395 ;  Hoyt 


§§  543,  544.]  TRAVERSE    OF    ANSWER.  385 

§543.  Qualified  admissions. —  When  the  garnishee  admits 
that  there  were  attachable  fantls  in  his  hands  at  a  date  prior 
to  the  service  of  the  process  upon  him,  he  must  show  posi- 
tively that  he  did  not  still  hold  them  at  the  time  of  the  serv- 
ice. If  he  states  that  he  had  expended  such  funds,  before 
the  service,  for  the  defendant's  benefit,  he  may  be  required  to 
show  specifically  in  what  manner  and  for  what  particular  pur- 
poses the  expenditure  was  made.  It  must  be  such  a  disburse- 
ment as  would  prove  a  good  defense  were  he  "sued  by  the 
defendant  in  the  attachment  suit,  after  the  admission  that  he 
held  such  funds  at  a  period  immediately,  or  within  a  few 
weeks  or  even  months,  preceding  the  service  of  the  writ.^  If 
it  has  been  proved  that  the  garnishee  has  defendant's  funds 
in  hand,  the  burden  is  on  him  to  show  that  they  are  not  liable 
to  garnishment.-  Though  the  plaintiff  must  make  out  his  case 
before  he  can  subject  the  defendant's  credit  to  the  payment 
of  his  claim,'  yet  by  traversing  the  answer  he  may  thus  throw 
the  burden  upon  the  garnishee  under  the  circumstances.  And 
the  latter  is  not  estopped,  by  his  answer,  from  proving  it  more 
explicitly  when  thus  challenged.* 

§  544.  "When  the  question  is  whether  an  assignment  by  the 
defendant  to  the  garnishee  was  made  in  good  faith  and  for  a 
valid  consideration,  if  the  garnishee  claims  to  hold  in  his  own 
right  by  virtue  of  such  assignment,  the  plaintiff  may  offer  evi- 
dence to  prove  that  the  claimant  knew  of  the  claim  of  the 
plaintiff  against  the  defendant,  and  of  the  effort  to  reach  the 
fund  in  the  garnishee's  hands.^    A  garnishee  having  bought 

V.  Swift,  13  id.  129;  Cairo  &  St.  *  Seymour  u  Seymour,  31  III.  App. 
Louis  R.  R  Co.  r.  Killenberg,  92  111.  227 ;  Speucer  v.  Moran,  80  la.  374. 
142;  Rippen  v.  Schoen,  92  id.  229;  5  Sullivau  u.  Langley,  124  Mass.  264. 
Sheldon  v.  Hiuton,  6  111.  App.  216;  It  was  held  in  Alabama  that  a  gar- 
Wilhelmi  v.  Haffner,  52  III.  222 ;  nishee  claiming  ownership  by  trans- 
Haven  V.  Wentworth,  2  N.  H.  93 ;  fer  from  a  transferee  is  bound  to 
Adams  v.  Barrett.  2  id.  374 ;  Piper  v.  prove  both  transfers,  and  to  show 
Piper,  2  id.  439 ;  Greenleaf  v.  Perrin,  that  the  first  transfer  was  made  prior 
8  id.  273;  Paul  v.  Paul,  10  id.  117;  to  the  service  of  the  garnishment, 
Getchell  v.  Chase,  37  id.  106.  for  a  valuable  consideration,  or,  if 

1  Barker  v.  Osborne,  71  Me.  69.  not  founded  on  such  consideration. 
Compare  Bethel  v.  Linn,  63  Mich,  that  he,  for  value,  accepted  a  trans- 
464.  fer    from    the    original    transferee. 

2  Pupke  V.  Meador,  72  Ga.  230.  Winslow  v.  Bracken,  57  Ala  308. 

3  Spears  v.  Chapman,  43  Mich.  541. 

25 


3S6  garnishee's  disclosure.  [§  645. 

bonds,  notes,  etc.,  of  the  defendant,  who  claimed  to  be  the 
agent  of  the  sellers,  and  the  plaintiff  having  alleged  that  bonds, 
etc.,  belonged  to  the  defendant  and  had  been  fraudulently 
transferred  to  the  garnishee,  it  was  held  that  the  defendant's 
principals  need  not  be  made  parties.^ 

The  burden  is  on  the  garnishee  to  sustain  an  answer  that 
property  held  by  him  is  in  trust,  when  such  answer  is  trav- 
ersed.2  The  answer  of  the  garnishee  is  not  evidence  on  the 
trial  of  the  issue  whether  the  latter  had  property  in  his  pos- 
session subject  to  attachment  when  he  was  summoned.^ 

§  545.  Garnishee  s  lyrotection. —  The  garnishee's  interest  is 
confined  to  his  own  protection  from  the  danger  of  being 
obliged  to  pay  twice,  if  he  is  indebted ;  but,  if  he  is  not  indebted, 
his  interest  and  the  correlative  right  give  him  the  position  of 
a  resident  against  the  danger  of  being  condemned  to  pay  once. 
Here  there  is  a  suit  within  a  suit;  a  contest  within  a  contest; 
and  it  is  manifest  that  it  should  be  confined  within  the  nar- 
rowest bounds  consistent  with  justice  to  all  the  parties.  The 
defendant  in  the  attachment  suit,  who  looks  on  without  par- 
ticipating in  the  incidental  contest,  sees  his  business  relation 
with  his  agent  or  alleged  debtor  undergoing  judicial  investi- 
gation, and  gathers  items  that  may  subserve  his  purpose  in 
case  the  same  questions  should  arise  in  any  subsequent  suit  b}' 
him  against  the  third  person  summoned  now  as  garnishee.'* 
"What  an  anomalous  state  of  things  is  here  presented,  if  the 
whole  subject  of  complicated  accounts  and  protracted  and 
multifarious  transactions  are  to  be  examined  with  one  of  the 
contradicting  parties  silent  while  the  other  is  virtually  on 
trial!  There  must  be  close  limits  assigned  to  such  a  side  in- 
vestigation. Whatever  would  require  a  lawsuit  between  the 
garnishee  and  his  creditor  for  elucidation  ought  not  here  be 
drawn  into  questioil.  Whatever  is  certainly  owing  and  liable 
now  or  hereafter  to  execution,  without  any  conditions,  should 
alone  be  the  subject  of  the  contest.     The  garnishee's  unsus- 

1  Capital  City  Bank  v.  Wakefield,  *  In  a  contest  between  an  attach- 
83  la.  46.  Citing  Potter  v.  Phillips,  ing  creditor  and  the  garnishee,  the 
44  id.  353,  and  distinguislmig  Fowler  principal  defendant  may  be  coni- 
V.  Doyle,  16  id.  534  and  Miller  v.  Ma-  pelled  to  submit  his  books  for  in- 
haffy,  45  id.  289.  spection    and    evidence,    in    Texas. 

2  Frank  v.  Frank,  6  Mo.  App.  589.  Simon  v.  Ash,   1  Tex.  Civ.  App.  202. 

3  Gushing  v.  Laird,  6  Ben.  408, 


<<  540. J  TRAVERSE    OF    ANSWER.  387 

picious  statements  should  stand  unless  they  can  be  clearly 
contradicted  without  involving  the  grounds  of  a  litigious  con- 
test. The  garnishee  ought  not  to  be  incidentally  forced  into 
a  long,  complicated  defense  of  himself  against  the  defendant 
by  an  attack  of  the  plaintiff  through  the  latter,  in  an  attach- 
ment suit,  when  there  yet  has  been  no  judgment  against  the 
defendant,  and  the  lien  arising  by  seizure  has  not  been  per- 
fec'.ed.  The  right  and  interest  of  the  attaching  creditor  would 
no:  necessarily  be  wholly  lost  should  the  garnishee  be  dis- 
charged, since  he  might  yet,  in  case  he  gained  judgment 
against  the  defendant,  levy  in  execution  upon  property  in  the 
third  person's  hands,  if  he  can  make  out  the  requisite  facts  at 
that  stage. 

§  546.  Record  of  the  main  case. —  The  proceedings  against 
the  principal  defendant  are  the  basis  of  the  auxiliary  issue, 
and  are  before  the  court  to  be  taken  note  of  without  being 
offered  in  evidence.  This  is  palpable  where  the  contest  with 
the  garnishee  is  in  the  general  suit,  under  the  case  entitled  by 
the  name  of  the  attaching  creditor  against  the  defendant;  but, 
though  not  so  readily  apparent,  it  is  equally  true  when  the 
auxiliary  issue  is  made  in  a  separate  proceeding  —  by  the 
plaintiff  in  the  attachment  suit  against  the  garnishee.  In  such 
minor  proceeding  the  court  may  inspect  the  record  of  the 
major  case ;  and  the  reason  is  that  the  issue  against  the  gar- 
nishee depends  on  the  state  of  the  principal  proceeding.  The 
two  records  are  connected  by  the  absolutely  necessary  allega- 
tions in  the  second,  showing  the  first  to  be  the  basis  upon 
which  the  garnishee  is  sued.  No  proof  of  the  first  record  is 
necessary,^  unless  it  is  brought  from  another  court,  when  it 
should  be  identified ;  or  from  another  state,  when  it  should  be 
properly  authenticated. 

When  a  cause  is  transferred  from  the  court  where  it  was 
instituted  to  another,  the  garnishee  is  entitled  to  notice,  and 
the  record  should  show  his  assent.  Otherwise  the  contest  of 
his  answer  after  transfer  is  erroneous." 

In  sustaining  his  denial  or  other  answer,  when  it  is  traversed, 

•  Farrington   v.   Sexton,   43    iMich.  rately  when  it  is  all  necessarily  to- 

454.    "The  whole  record  is  connected,  gether  before  the    same    tribunal." 

and  it  would  be  a  vain  and  useless  Strong  v.  Hollon,  39  Mich.  411. 

ceremony  to  introduce  proof  sepa-  -Cross  i".  Spillmau,  93  Ala.  170. 


388  garnishee's  disclosure.  [§  547. 

the  garnishee  can  plead  and  prove  whatever  would  be  perti- 
nent in  the  defense  of  a  direct  suit  against  him  by  the  principal 
defendant.^ 

§  547.  Effect  of  jyreiuiyment  or  (Ulivery. —  The  garnishee 
must  be  charged  when  he  has  delivered  the  property  of  the 
defendant  to  him,  or  paid  him,  after  having  been  served  with 
process.^  But  after  the  interrogatories  and  summons  have 
been  issued,  if  the  garnishee  pay  the  defendant  before  he  is 
served,  especially  if  he  is  ignorant  of  the  issue  of  the  garnish- 
ment, he  will  not  be  liable  as  garnishee.^  Even  if  the  notice 
has  been  left  at  his  residence,  payment  without  knowledge  of 
it  will  acquit  him  of  obligation  to  defendant  and  therefore  of 
liability  to  the  attaching  creditor.  If  a  co-obligor  pay  the 
debt,  it  will  be  settled  as  to  the  garnishee,  and  he  will  be  ex- 
empt from  liability,  provided  the  co-obligor  knew  nothing  of 
the  issuance  of  the  garnishment;  though,  if  service  has  been 
made,  both  co-debtors  might  be  presumed  to  know  of  it  and  to 
be  estopped  from  making  payment  to  the  defendant.'*  Gen- 
erally, where  a  clerk  or  employee,  authorized  to  pay  for  his 
principal,  settles  a  debt  in  duo  course  of  business  without 
knowledge  of  the  garnishment  of  the  principal,  without  any 
collusion  on  the  part  of  the  principal,  and  under  such  circum- 
stances that  the  principal  could  not  have  countermanded  the 
agent's  general  authority  to  pay  by  reason  of  distance,  want 
of  time  or  some  other  good  cause,  the  garnishee  ought  not 
be  held.  Especially,  if  the  principal  is  a  corporation  which 
must  necessarily  act  through  agents,  should  it  be  held  harm- 

1  Jones  V.   Tracy.  75  Pa.  St.  417;  133;  Hinkle  u  Currin,  1  id.  74;  How- 
Myers  V.  Baltzell,  37  id.  491 ;  Strong's  ard  v.  Crawford,  21  Tex.  399. 
Ex'rs  V.   Bass,  35  id.  333 ;  Riddle  v.        2  First  N.  Bank  v.  Turner  (Nev.),  46 
Etting,  33  id.  413;  Brown  u  Brown,  N.   W.   390;    Adams  v.   Penzell,   40 
55  N.  H.  74;  Cota  v.  Mishow,  63  Me.  Ark.  531. 

134 ;    Edson    v.   Sprout,   33  Vt.   77 ;        3  Landry  v.  Chayret,  58  N.  H.  89. 
Spring  V.  Ayer,  33  id.  516 ;  Hitchcock        ^  storm  v.  Cotzhausen,  38  Wis.  139. 

V.  Langto,  137  Mass.  514;  Doyle  v.  An  affidavit  for  garnishment  being 

Gray,  110  id.  306;  Gleason  v.  Gage,  8  against  two  garnishees  as  a  firm,  and 

Allen,  410;   Firebaugh  v.  Stone,   36  both  answering  with  denial  of  either 

Mo.  Ill ;  Daniels  v.  Clark,  38  la.  556 :  personal  or  firm  indebtedness,  one  of 

Gage    V.   Chesebrow,    49   Wis.   486;  them   was  charged   upon    evidence 

Thompson  v.  Allison,   38  La.   Ann.  given    on    traverse   of    his  answer. 

733;  Baldwin  v.  Morrill, '8  Humph.  First   N.  Bank  v.  Graham  (Tex.),  32 

S.  W.  1102. 


§§  5-18,  549.]  TKAVEKSE    OF    ANSWEK.  389 

less  if  a  jDaying  officer  has  discharged  an  obligation  before  it 
was  practicable  for  the  officer  served  with  the  process  to  com- 
municate with  such  disbursing  officer. 

The  burden  of  proof  in  any  such  case  would  be  upon  the 
garnishee  to  show  good  faith  and  absence  of  any  intention  to 
side  with  the  defendant  rather  than  with  the  plaintiff  in  mak- 
ing the  payment,  and  ignorance,  on  the  part  of  the  person 
actually  settling  the  debt,  of  the  fact  of  the  service  upon  the 
principal,  and  want  of  o|)portunity  by  the  latter  to  inform 
the  agent. 

§  548.  Prior  suit. —  AVhen  the  garnishee  is  already  sued  for 
the  sum  he  owes,  he  ought  not  to  be  held ;  for  the  person  is- 
suing the  garnishment  can  better  attain  his  end  by  seizing  the 
right  of  the  plaintiff  in  the  suit  against  the  garnishee.  How- 
ever, if  the  garnishment  can  be  pleaded  in  bar  of  the  action, 
under  statutory  provision,  the  garnishee  would  not  be  liable 
to  a  second  payment,  and  the  garnishment  may  be  maintained. 
Even  then,  however,  the  summons  must  be  made  in  time  to 
enable  the  garnishee  to  defend  the  action  against  him  by  such 
plea,  as  it  would  be  too  late  after  judgment  rendered.  He 
could  not  plead  such  summons  in  arrest  of  judgment. 

A  defendant  was  sued  for  debt,  and  garnished  for  the  same 
debt  in  another  suit.  Both  suits  being  in  the  same  court,  it 
was  ordered  that  the  garnishment  proceeding  be  stayed  to 
await  the  result  of  the  other  case.^  It  is  held  that  the  de- 
fendants of  a  suit  are  not  garnishable  in  another  court  when 
the  first  has  jurisdiction.^ 

§  549.  If  indebted  when  served,  the  garnishee  cannot  be 
discharged  by  pleading  payment  of  a  judgment  afterwards 
rendered  against  him  for  his  debt.     A  garnishee  who  has  ad- 

1  Smith  V.   Carroll,   17   R.    I.  125 ;  mand  for  damages,  it  was  held.   Dib- 

Trombley  v.  Clark,  13  Vt  118;  Craw-  nell  v.  Neely,  61  Miss.  218. 
ford  V.  Siade,  9  Ala.  881 ;  McDouaUl        2  Mack  v.   Winslow,  59  Fed.  316 ; 

V.  Carney,  8  Kau.  20.    Compare  Burt  Wallace  v.   McConnell,  13  Pet  136. 

V.  Reilly,  82  Mich.  251.     A  creditor  It  has  been   held  that  a  garnishee 

of  a  judgment  plaintiff  may  be  de-  cannot  be  charged  because  there  has 

feated  as  his  garnishor  by  the  judg-  been  judgment  against  him  in  an- 

ment  debtor's  paying  the  plaintiff  (a  other  srtate.    American  Bank  v.  Snow, 

sum  agreed  upon)  to  obtain  a  new  9  R.  I.  11. 
trial  and  to  relieve  himself  from  de- 


300  garnishee's  disclosuke.  [§§  550,  551. 

mitted  a  sum  to  be  due  the  defendant  may  have  judgment 
entered  against  him  accordingly,  though  it  became  due  after 
the  defendant  had  filed  his  plea.^  But  if  he  answers  that  the 
defendant  has  sold  what  he  holds,  or  a  part  thereof,  he  will 
not  be  liable  for  what  was  sold  before  the  service  of  the  in- 
terrogatories, even  though  such  sale  be  subsequently  set  aside 
as  fraudulent.^  Doubtless  he  might  be  reached  by  garnish- 
ment after  a  final  judgment  setting  aside  such  sale,  if  the 
property  should  still  be  in  his  possession.  It  will,  of  course, 
be  understood  that  the  answer  setting  up  the  sale  must  be 
made  in  good  faith,  and  not  shaken  by  traverse,  in  order  to 
reheve  the  garnishee  of  liability  in  such  case. 

§  550.  Should  the  garnishee  admit  indebtedness  to  the  de- 
fendant, yet  disclose  the  fact  that  the  indebtedness  was  for 
property  he  had  bought  of  the  defendant  and  that  the  latter 
held  a  lien  upon  the  property  for  its  payment  and  had  filed  a 
bill  to  enforce  the  lien  to  an  amount  as  great  or  greater  than 
the  sum  claimed  by  the  attaching  creditor  upon  which  the 
garnishment  was  issued,  it  has  been  held  that  he  ought  not  to 
have  judgment  rendered  against  him  as  garnishee.^  If  there 
is  nothing  legally  subject  to  garnishment  in  the  garnishee's 
hands  the  principal  defendant  may  interfere  to  show  it  and 
preserve  his  rights.^ 

§  551.  A  garnishee  may  answer  that  he  owes  the  defendant, 
and  his  answer  may  be  true;  but  if  the  defendant  is  the  agent 
of  a  principal  the  latter  may  successfully  claim  the  fund.  The 
garnishee  may  have  done  business  \vith  the  defendant  and 
come  under  obligations  to  him,  without  knowing  that  the 
latter  was  acting  in  the  capacity  of  agent  for  another.  He 
may  be  liable  to  a  suit  for  the  enforcement  of  such  obliga- 
tions. But  the  agent's  right  to  sue  is  derived  from  the  prin- 
cipal; and  that  right  continues  only  during  the  principal's 

>  IMuUen  v.  Maguire,  10  Pliila.  435.  bal  statements  of  garnishee,  Sears  v. 

When  a  garnishee  has  made  no  ob-  Thompson,  73  la.  61. 

jection  to  a  statement  of  his  indebt-  2  Meyer  v.  Defifarge,  30    La.  Ann. 

edness    made  in   his  presence   at  a  (Part  I),  548. 

meeting  where  he  presided,  the  fact  *  Vertrees  v.  Hicks,  4  Bax.  380. 

was    received   in    evidence    against  ^  Oakes  v.    Marqiiardt,  49  la.  643. 

him.     Des  Moines  Bank  v.  Hotel  Co.  See  Barry  v.  Hogan,  110  Mass.  209. 
(la.),  55  N.  W.  67.    But  see,  as  to  ver- 


§  552.]  CHARGING   ORDER.  391 

pleasure.  Tlie  garnishee  may  be  sued  by  the  agent's  princi- 
pal, whose  right  is  superior  to  that  of  the  agent.  And,  in  an 
attachment  proceeding,  after  the  garnishee  has  answered  that 
he  owes  the  defendant,  the  principal  of  that  defendant  may 
claim  the  debt ;  and  upon  the  establishment  of  the  fact  that 
the  garnishee  owes  the  defendant,  who  is  the  agent  of  the 
claimant,  he  will  be  entitled  to  have  the  attachment  set  aside.^ 

YIII.  The  Charging  Order. 

§  552.  Interlocutory  judgment. —  The  only  judgment  that 
can  be  rendered  against  the  garnishee  at  this  stage  of  the 
proceedings,  before  there  has  been  any  rendered  against  the 
principal  defendant  and  the  property  attached  or  subjected  to 
garnishment,  must  necessarily  be  merely  interlocutory.  Being 
subsidiary  to  the  main  decree,  it  cannot  possibly  possess  final- 
ity before  that  shall  have  been  rendered.  ]^o  final  judgment, 
except  one  in  favor  of  the  garnishee,  pronouncing  his  discharge, 
can  be  rendered  in  the  side  suit  until  the  principal  suit  shall 
have  been  prosecuted  to  its  termination,  and  that  termination 
must  be  favorable  to  the  attaching  creditor  if  he  is  to  have 
final  judgment  and  execution  against  the  garnishee.  There 
should  be  no  charging  order  in  doubtful  cases.^  The  defend- 
ant may  oppose  the  charging  of  the  garnishee  on  proper 
grounds,  such  as  that  the  debt  or  property  is  exempt;  that 
the  attachment  has  been  vacated,  or  any  ground  that  his  in- 
terest requires  him  to  assert;  but  the  opposition  should  be 
before  the  interlocutory  order  has  been  made  —  at  least  be- 
fore the  garnishee  has  paid  or  delivered  and  the  plaintiff  has 
received.' 

The  order  must  be  valid  or  the  garnishee  will  not  be  ac- 
quitted by  payment  thereunder.  Payment  by  him  under 
order,  when  his  summons  had  been  illegally  returned,  was 

1  Sheehan  v.  Maiston  &  Trustee,  debt.    Simmons  v.  Woods.  144  Mass. 

132  Mass.  161.     It  lias  been  held  that  385,  distinguishing  Allen  u  Wright, 

attachment  is  not  dissolved  by  the  134  Mass.  347,  and  136  Mass.  193.   See 

discharge  of  a  garnishee  or  trustee,  Belknap  v.  Gibbons,  13  Met  471. 

who,  summoned  as  mortgagee,  dis-  sijraiuard  r.  Simmons,  67  la.  646. 

claims  and  denies  the  mortgage  and  3  i\[Q  ^i,  Arnot,  31  Kan.  672. 


392  garnishee's  disclosuke.  [§  553. 

held  void,  aud  he  was  not  protected  from  a  subsequent  suit 
by  the  attachment  defendant.^ 

§  553.  After  the  garnishee  has  become  bound  to  pay  to  the 
plaintiff  (or  to  pay  into  court  for  his  benefit),  the  defendant 
cannot  defeat  the  charging  order  by  disclaimer.  He  cannot 
disclaim  a  fine  due  him  to  defeat  garnishment.-  He  cannot 
move  for  a  new  trial  of  the  garnishment  proceeding.^  His  and 
the  garnishee's  rights  and  liabilities,  relative  to  the  charging 
order,  have  been  passed  upon  under  various  circumstances.* 

iWhitcorab  v.   Atkins    (Neb.),   59  316;  Thompson  u.  GainsvilleN.  Bank, 

N.  W.  86 ;  Neb.  Civ.  Code,  §  244.  66  Tex.  156 ;  Huot  v.  Ely,  17  Fla.  775 ; 

^Fisku  Aldricb,  59N.  H.  113.  Secor  v.   Witter,   39  Ohio   St.   218; 

SFosteru  Haynes,  88Ga.240.    And  Terra  Haute,  etc.  Co.  u  Baker,  122 

the  garnishee  cannot  move  for  a  new  Ind.  433;  Smith  v.  Dickson,  58  la. 

trial   of  the  attachment  case.     Ex-  444;  Broadhurst  v.  Morgan  (N.  H.), 

change  Bank  v.  Freeman,  89  Ga.  771.  29  A.  553 ;    Studebaker,  etc.  Co.  v. 

4Holcomb  V.  Winchester,  52  Ct  Santo  Tomas  Coal    Co.   (Tex.   Civ. 

447;  Farwell  v.  Chambers,  63  Mich.  App.),  27  S.  W.  787. 


I 


CHAPTER  XY. 

THE  PROPERTY  IN  COURT. 

L  Custody  by  the  Sheriff §§  554-561 

II.  Keepers  or  Receiptors 5G2-572 

'JL  Defendant  Holding  Under  the  Sheriff 573-576 

IV.  Receivers 577-578 

V,  The  Garnishee's  Possession 579-587 

VI.  Sale  of  Perishable  Goods 588-592 

VII.  Loss  of  Custody 593-595 

I.  Custody  by  the  Sheriff. 

§  554.  Control  1)7/  the  court. —  When  the  return  shows  that 
joroperty  of  the  debtor  has  been  validly  attached,  the  court, 
in  contemplation  of  law,  is  in  possession  of  the  res  and  may 
exercise  control  over  it.  It  is  necessary  to  an  attachment  suit, 
as  it  is  in  any  proceeding  m  rem,  that  the  property  be  in  court. 
The  custody  by  the  sheriff  is  not  adverse  to  the  judicial  pos- 
session, but  under  the  authority  of  the  court.  The  custody 
by  a  keeper  is  under  the  marshal,  sheriff,  constable  or  other 
executive  officer ;  so,  also,  the  possession  by  a  receiptor,  or  by 
the  debtor  himself  under  a  forthcoming  bond,  is  entirely  sub- 
ordinate to  that  of  the  responsible  executive  officer,  and  all 
are  under  the  court ;  the  attached  property  is  none  the  less  in 
court  by  reason  of  its  having  been  intrusted  to  any  subordi- 
nate custodian. 

The  immediate  relation  of  the  court  to  the  property  is 
through  the  executive  officer,  to  whom  judicial  orders  respect- 
ing the  custod}",  preservation,  sale  or  deliveiy  are  addressed. 
The  intrusting  of  property  to  keepers  or  receiptors  is  done  by 
that  officer  himself,  pursuant  to  law;  and  even  the  temporary 
and  contingent  release  to  the  defendant  on  a  forthcoming 
bond  is  his  business  in  many  of  the  states.  And  even  pro[)- 
erty  or  a  credit  of  the  defendant,  attached  in  the  hands  of  a 
third  person,  is  deemed  to  be  in  court  for  all  the  purposes  of 
the  suit. 


39dl:  PEOPEKTY    IN   COURT.  [§§  555,^  556. 

§  555.  Diligence. —  The  sheriff  must  exercise  car^  and  dili- 
gence in  the  keeping  and  preservation  of  the  property  at- 
tached, and  he  is  legally  responsible  therefor  to  whom  it  may 
concern.^  He  is  not  responsible  beyond  reasonable  watchful- 
ness, precaution  and  the  employment  of  proper  means  of 
security.  He  ought  to  be  even  more  careful  than  owners 
ordinarily  are.  He  would  not  be  doing  his  duty  should  he 
leave  the  door  unlocked  in  which  attached  goods  are  stored 
with  no  keeper  on  guard,  though  owners  are  accustomed  to 
leave  many  species  of  property  thus  exposed.  This  is  because 
they  are  in  more  danger  of  being  molested  than  goods  not 
under  seizure.  He  is  not  liable,  however,  when  attached  prop- 
erty perishes  without  his  fault.- 

§  556.  H,  to  avoid  expense,  or  for  other  reason,  the  plaintiff 
should  obtain  an  order  of  court  directing  the  officer  to  dispense 
with  the  keeper,  the  sheriff,  though  still  bound  to  due  diligence, 
could  not  be  held  responsible  to  the  plaintiff  for  any  loss  trace- 
able to  the  want  of  a  keeper.  The  plaintiff,  to  effect  the  dis- 
charge of  the  keeper,  should  apply  to  the  court,  not  to  the 
executive  officer.*  He  cannot  have  the  property  intrusted  to 
himself.* 

1  Becker    v.    Bailies,    44    Ct.    167;  Pacific,  etc.  (Utah),  31  P.  499;  Root 

Bridges  v.  Perry,  14  Vt.  263 ;  Cutter  v.   Columbus,  etc.  R.  Co.  (Ohio),  13 

V.   Howe,    133   Mass.   541 ;   Davis  v.  N.  E.  812 ;  Jordan  v.  Gallup,  16  Ct. 

Stone,  120  id.  338;  Weavev  v.  Wood,  5;:36;  Dorrier  v.  Masters,  83  Va.  459; 

49  Cal.    297;   Kendall  v.   Morse,   43  Lyeth  v.  Griffis,  44  Kan.  159;  Cris- 

N.  H.  553 ;  Lovejoy  v.  Hutchins,  23  field  v.  Neal,  36  id.  282 ;  Russell  v. 

Me.  272;    Clerk  v.  Withers,  2  Lord  Mayor,  29  Mo.   App.  167;   Peeler  v. 

Raymond,  1075 ;  Mildmay  v.  Smith,  3  Stebbins,  36  Vt.  644 ;  Stewart  v.  Mar- 

Saund.  343;  Wilbraham  v.  Snow,  id.  tin,  16  id.  397;  Yale  v.  Saunders,  id. 

47 ;  Littleton  v.  Wyman,  69  la.  348 ;  243.     See   Barron   v.   Smith,   63   Vt. 

Bickler    v.     Kendall,     66    id.     703 ;  121  (in  exposition  of  act  of  1884,  No. 

Rix  V.  Silknitter,  57  id.  262 ;  Craw-  99) ;    Lewiston   Mill   Co.  v.  Foss,  81 

ford  V.  Newell,  23  id.  453;  Zschocke  Me.  593;  Naser  v.  First  N.  Bank,  116 

V.    People,    62    111.    127 ;     Hardin    v.  N.  Y.  492 ;  Grey  v.  Sheridan,  etc.  Co., 

Sisson,  36  111.  App.  383;  Crittenden  19  Abb.  N.  C.  152;  Mooney  v.  Broad- 

V.  Rogers,   43  111.   100;  Davidson  v.  way  (Ariz.),  11  P.  114. 
Waldron,  31  id.  120 ;  Havely  v.  Lowry,        2  ide  v.  Fassett,  45  Vt.  68 ;  Cross  v. 

30  id.  446 ;  Minor  v.  Herriford,  25  id.  Brown,  41  N.  H.  283 ;  Shaw  v.  Laugh- 

344 ;  Cogswell  v.  Wilson,  17  Greg.  31 ;  ton,  20  Me.  366 ;  Falls  v.  Weissinger, 

Schneider  v.  Sears,  13  id.  69;  Wood  11  Ala.  801. 
V.   Bodine,  33  Hun,  354 ;   Powell  v.        » The  Independent,  9  Ben.  489. 
McKechnie,  3  Dak.  319 ;  Chisman  v.        *  Vanneter  v.  Grossman,  39  Mich. 

Dorsey,  13  Colo.  567;  Ross  v.   Phil-  310. 
brick,   39   Me.    29;   Kiesel  v.  Union 


'T.J 


CUSTODY    BY   SHERIFF. 


395 


Efficient  care  and  diligence,  in  the  protection  and  preserva- 
tion of  the  things  attached,  is  required;  such  care  as  is  reason- 
able and  necessary  for  the  protection  and  preservation  of 
property  under  seizure  and  subject  to  litigation;  and  courts 
always  take  into  consideration  the  circumstances  of  each  case.^ 
It  is  the  officer's  right  and  duty  to  protect  the  property  in  his 
charge  from  trespassers,  and  they  are  directly  liable  to  him.- 

§  557.  Bcsto ration. —  Upon  the  dissolution  of  attachment  it 
is  his  dut}^  to  restore  the  res  to  the  defendant  —  not  the  im- 


1  Starr  v.  Moore,  3  McLean,  354; 
Farris  v.  State,  33  Ark.  70;  Adler 
V.  Roth,  2  McCrary,  445 ;  Runlett  v. 
Bell,  5  N.  H.  433 ;  Howard  v.  Whitte- 
more,  9  id.  134 ;  Barron  v.  Cobleigh, 
11  id.  557;  Kendall  v.  Morse,  43  id. 
553 ;  Bruce  v.  Pettengill,  13  id.  341 ; 
Bridges  v.  Perry,  14  Vt.  263 ;  Johnson 
V.  Edson,  2  Aikens  (Vt),  299 ;  Brown 
V.  Richmond,  27  Vt  583;  Gilbert  v. 
Crandall,  34  id.  188 ;  Briggs  v.  Taylor, 
28  id.  180 ;  Smith  v.  Church,  27  id. 
168:  Parrott  v.  Dearborn,  104  Mass. 
168;  Philhps  v.  Bridge,  11  id.  242; 
Tyler  v.  Ulmer,  13  id.  163 ;  Congdon 
V.  Cooper,  15  id.  10 ;  Cooper  v.  Mowry, 
16  id.  5 ;  Sewall  v.  Mattoon,  9  id.  535 ; 
Fettyplace  v.  Dutch,  13  Pick.  388; 
Hemmenway  v.  Wheeler,  14  id.  408; 
Sanderson  v.  Edwards,  16  id.  144; 
Donham  v.  Wild,  19  id.  530;  Law- 
rence V.  Rice,  13  Met  537 ;  Dorham 
V.  Kane,  5  Allen.  38 ;  Pierce  v.  Strick- 
land, 2  Story,  292 ;  Adams  v.  Balch, 
5  ^le.  188;  Jenney  v.  Delesdernier, 
20  id.  183;  Twombly  v.  Hunnewell, 
2  id.  221 ;  Rice  v.  Wilkinson,  21  id. 
558;  Tukey  v.  Smith,  18  id.  125; 
Childs  V.  Ham,  23  id.  74 ;  Farnham 
V.  Oilman,  24  id.  250;  Lovejoy  v. 
Hutchins,  23  id.  272;  Bennett  v. 
Brown,  31  Barb.  158 ;  McKay  v.  nar- 
rower, 27  id.  463 ;  Moore  v.  Wester- 
velt  1  Bosworth,  357 ;  Dick  v.  Bailey, 
2  La.  Ann.  974 ;  McComb  v.  Reed,  28 
Cal.  281 ;  Sagely  v.  Livermore,  45  id. 
613;   Weaver  v.  Wood,  49  id.  297; 


Newman  v.  Kane,  9  Nev.  234 ;  State 
V.  Baldwin,  10  Bissell,  165. 

2  Smart  v.  Bachelder,  57  N.  H.  140 ; 
Ordiorne  v.  Colley,  2  id.  66 ;  Sinclair 
V.  Tarbox,  id.  135;  Goodrich  v. 
Church,  20  Vt  187;  Whitney  v. 
Ladd,  10  id.  1G5 ;  Barker  v.  Miller,  6 
Johns.  195;  Hotchkiss  v.  McVicker, 
12  id.  403;  Ladd  v.  North,  2  Mass. 
514;  Warren  v.  Leland,  9  id.  265; 
Perley  v.  Foster,  id.  112;  Ludden  v. 
Leavitt  id.  104;  Gibbs  v.  Chase,  10 
id.  125 ;  Gates  v.  Gates.  15  id.  310 ; 
Gordon  v.  Jenney,  16  id.  465 ;  Whit- 
tier  V.  Smith,  11  id.  211;  Harriman 
V.  Gray,  108  Mass.  229 ;  Pool  v.  Sym- 
onds,  1  N.  H.  289;  Huntington  v. 
Blaisdell,  2  id.  317;  Lovell  v.  Sabin, 
15  id.  29;  Butterfield  v.  Cleraence,  10 
Cush.  269;  Strout  v.  Bradbury,  5  Me. 
313 :  Nichols  v.  Valentine,  36  id.  322 ; 
Walker  v.  Foxcrof  t,  2  id.  270 ;  Torrey 
V.  Otis,  67  id.  573;  Wadsworth  v. 
Walliker,  45  la.  395 ;  Lathrop  v.  Blake, 
3  Fos.  46 ;  Lowry  v.  Walker,  5  Vt 
181;  Adler  v.  Roth,  2  McCrary,  445; 
Utley  V.  Smith,  7  Vt  154 ;  Brownell 
V.  Manchester,  1  Pick.  232 ;  Badlam 
V.  Tucker,  id.  389 ;  Stiles  v.  Davis,  1 
Black,  101;  Rhoads  v.  Woods,  41 
Barb.  471 ;  Farris  v.  The  State,  use, 
etc.,  33  Ark.  70;  Atkins  v.  Swope,  38 
id.  538;  Foulks  v.  Pegg,  6  Nev.  136; 
United  States  v.  McDonald,  8  Biss. 
439 ;  Woolfolk  v.  Ingraham,  53  Ala. 
11. 


39G  PEOPERTY   IN   COUET.  [§§  558,  559. 

mediate  duty  of  the  plaintiff,  since  the  latter  has  no  posses- 
sion.^ He  cannot  hold  after  he  has  ceased  to  be  the  legal 
custodian,^  In  his  capacity  as  custodian  under  the  court,  in 
consideration  of  his  ultimate  duty  to  have  the  property  ready 
for  execution  should  there  be  judgment  for  the  plaintiff,  or  to 
return  it  to  the  defendant  should  there  be  judgment  in  favor 
of  the  latter,  he  has  such  present  legal  right  of  property  in  it 
that  he  may  sue  and  be  sued  concerning  it  in  his  own  official 
character.^  He  is  entitled  to  timely  demand  before  being 
sued  for  restoration.* 

§  558.  Constructive  2>ossession. —  Legal  and  constructive 
possession  and  actual  control  must  be  maintained  though  the 
property  be  not  susceptible  of  mauijjulation,  and  though  the 
seizure  was  effected  by  giving  notice  or  by  whatever  other 
method  may  have  been  most  practicable  in  conformity  to 
statute.  Machinery  bolted  or  otherwise  fastened  to  the  free- 
hold need  not  be  removed  by  the  sheriff  for  the  purpose  of 
getting  legal  possession  and  control ;  and  he  need  not  detach 
it  in  order  to  maintain  his  possession.^ 

§559.  IIoiv  landis  held. —  As  land  is  attached  by  giving 
notice  to  the  tenant  in  possession,  making  proper  return,  re- 
cording the  lien  when  required,  etc.,  there  is  no  need  of  the 
appointment  of  a  keeper  to  maintain  the  possession ;  but  the 
legal  custody  must  be  maintained  as  in  the  case  of  personal 
property.  Whatever  would  operate  a  displacement  of  the 
lien  created  by  the  constructive  seizure,  so  that  the  property 
could  be  transferred  by  the  defendant  free  from  incumbrance, 
would  be  equivalent  to  the  relinquishment  of  the  legal  posses- 
sion; and,  if  such  result  should  prove  to  have  been  caused  by 
any  action  or  negligence  of  the  sheriff  or  marshal,  or  of  those 
under  his  authority,  he  would  be  responsible. 

1  Blanchard  v.  Brown,  42  Mich.  4G.  Marshall  v.  Marshall,  2  Houston 
Also  when  the  plaintiff  orders  re-    (Del.),  125. 

lease.     Levy  v.   McDowell,   45  Tex.  *  Shepherd  v.  Hall,  77  Me.  569. 

220.  5  Patch  V.   Wessels,  46  Mich.  249; 

2  Collins  V.  Smith,  16  Vt.  9;  Holtu  Hatch  v.  Fowler,  28  id.  211.  So  of 
Burbank,  47  N.  H.  164;  Ryan  v.  Pea-  farming  products  in  bulk,  stored  in 
cock,  40  Minn.  470.  a  barn.     Woodman  v.  Trafton,  7  Me. 

3  Whitney  v.  Ladd,  10  Vt.  165;  178;  Carr  v.  Farley,  12  id.  328.  So 
Schaeffer  v.  Marienthal,  17  Ohio  St.  of  a  growing  crop.  Grover  v.  Buck, 
183;  Skinner  f.  Stuart,  39  Barb.  206;  84  Mich.  519.     So   of  corded  wood. 

Molm  V.  Barton,  27  Minn.  530. 


§§  5G0,  5G1.]  CUSTODY    BY   SHERIFF.  397 

§  560.  When  the  statute  makes  an  attaching  creditor  a  pur- 
chaser for  value,  he  may  maintain  a  suit  in  equity  to  set  aside 
an  assignment  of  the  attached  property  on  the  ground  of 
fraud  ;^  but  he  has  no  greater  rights  than  any  other  such  pur- 
chaser.2  The  fiction  that  the  attaching  creditor  is  a  purchaser ' 
is  not  extended  to  give  him  rights  to  land  when  the  debtor 
liad  none/  No  right  to  actual  possession  is  given  by  attach- 
ing; no  right  to  collect  rents.^  The  officer  takes  legal  posses- 
sion and  control  so  that  the  land  is  in  court  and  subject  to 
the  jurisdiction.  The  lien  upon  it  dates  from  the  attachment 
generally.  In  Missouri  it  begins  from  the  filing  of  an  "  ab- 
stract of  the  attachment"  in  the  recorder's  office.**  In  Mich- 
igan and  other  states  the  lien  depends  on  the  registry  of  the 
attachment  of  real  estate.'^  In  Texas  the  lien  begins  from  the 
date  of  the  levy  —  not  from  that  of  the  publication  to  the  ab- 
sent debtor;^  and  it  is  not  displaced  by  failure  to  file  the 
attachment  return  till  after  the  first  term  of  court,  though 
intervening  right  may  be  acquired  by  others  meanwhile.®  It 
is  not  destroyed  by  delivering  the  attached  realty  to  the  de- 
fendant on  his  forthcoming  bond.^*^  But  the  loss  of  the  legal 
custody  of  attached  land  is  the  loss  of  jurisdiction  over  the 
attachment,  and  this  is  well  settled.  Legal  custody  of  land  is 
as  important  as  both  legal  and  actual  custody  of  personalty. 
When  the  attaching  creditor  has  abandoned  his  attachment, 
no  order  of  court  is  necessary  for  the  release  of  the  land,  as  it 
is  not  in  actual  official  custody." 

§  561.  How  goods  are  liei)t. —  The  sheriff  may  keep  attached 
goods  under  lock  and  key  in  a  warehouse,  or  otherwise  and 
elsewhere,  under  his  own  immediate  care;  but  it  is  usual  to 
intrust  them  to  the  care  of  a  keeper  selected  in  consideration 

1  Hahn  v.  Salmon,  20  Fed.  801.  ^  Davis,    etc.   Co.  v.   Whitney,    61 

2 Boehreinger  u.  Crelghton,  10  Oieg.  Mich.  518;  French  v.  De  Bow,  38  id. 

43.  708. 

3  Woodward  v.  Sartwell,  129  Mass.        8  Walton  v.  Cope,  3  Tex.  Civ.  App. 

210 ;  Coffin  v.  'Ray,  1  Met.  (Mass.)  212.  499 ;  Tex.  Stat  of  1889. 

*  Cowley  V.  McLaughlin,  141  Mass.        9  City  Bank  v.  Cupp,  59  Tex.  268. 
181 ;  Haynes  v.  Jones,  5  Met  (Mass.)       i"  Stevenson  v.  Palmer,  14  Colo.  565. 

293 ;    Oregon  Ry.   and  Nav.   Co.  v.  The  rule  is  not  confined  to  Colorado, 

Gates,  10  Greg.  514.  but  is  general. 

5  Kothman  r.  Markson,  34  Kan.  5-12.       u  Smith  v.  Robinson,  64  Cal.  887. 

6  Stanton  v.  Boschert,  104  Mo.  393. 


398  PKOPERTY    IN    COUET.  [§  562. 

of  his  trustworthiness.  Keepers  are  often  necessary  to  secure 
the  safety  of  attached  goods  or  other  articles  of  personal 
property,  especially  when  there  are  several  cases  of  seizure  in 
court  so  that  it  may  bec6me  impracticable  for  the  sheriff  to 
become  the  personal  and  immediate  custodian  of  all.  Keepers 
are  the  servants  of  the  sheriff,  subject  to  his  direct  commands, 
while  he  continues  amenable  to  the  court  as  the  only  cus- 
todian judicially  recognized  as  responsible  for  the  safe-keeping 
and  certain  forthcoming  of  the  property  upon  which  the  juris- 
diction rests. 

Goods  attached  are  often  allowed  to  remain  in  the  store  or 
warehouse  in  which  they  are  found,  since  this  is  usually  most 
to  the  interest  of  all  parties  concerned  and  prevents  the  loss, 
intermixture  and  confusion  which  removal  would  be  likely  to 
cause ;  but,  when  such  building  is  not  itself  one  of  the  subjects 
of  the  attachment,  but  is  the  property  of  the  defendant  or  his 
lessor  or  some  other  person,  the  sheriff  cannot  detain  the 
ffoods  there  as  a  matter  of  rio^ht.'  He  cannot  conduct  the 
business  of  the  defendant  when  he  has  attached  a  store  with 
its  goods.^ 

II.  Keepees  oe  Receiptoes. 

§  562.  In  general. —  It  is  a  common  practice  for  the  sheriff 
to  intrust  attached  property  to  keepers.  He  takes  from  them 
written  acknowledgments  showing  that  they  hold  the  prop- 
erty under  him,  subject  to  be  returned  to  him  on  his  demand. 
Such  a  receiptor  may  be  the  friend  of  the  attachment  debtor, 
and  may  really  accept  the  position  of  bailee  in  the  interest  of 
the  debtor,  who  is  still  the  owner  of  the  property  and  pre- 
sumptively not  indebted  as  charged;  but  the  receiptor  is 
legally  the  sheriff's  servant,  bound  to  hold  under  him,  to  p.o- 
serve  and  protect  the  property  for  him,  and  to  have  it  forth- 
coming for  the  purposes  of  the  attachment  suit  when  required. 

The  sheriff  is  not  bound  to  turn  property  over  to  a  re- 
ceiptor, even  where  that  practice  is  prevalent.  He  may  wisely 
decline  to  do  so  unless  well  secured  by  bond.     It  would  be 

1  Williams    v.    Powell,    101   Mass.        -Alexander  v.  Denaveux,  59  Cal. 
4G7;   Newton  v.  Adams,  4  Vt.  437;     476. 
Rowley  v.  Rice,  11  Met.  337 ;  Malcom 
V.  Spoor,  12  id.  279. 


§§  5G3,  564]  KEEPERS    OR    RECEIPTORS.  399 

unsafe  to  do  so  without  security,  unless  the  plaintiff  has  pre- 
viously consented  to  such  arrangement  and  thus  exonerated 
the  sheriff  from  all  danger  of  subsequent  blame  and  claim  for 
damage. 

§  563.  Description. —  The  attached  property  should  be  de- 
scribed in  the  receipt;  there  should  be  an  inventory  if  there 
are  several  articles ;  there  should  always  be  such  particularity 
as  to  render  the  property  easily  susceptible  of  identification.^ 

A  bailee  to  whom  attached  property  is  intrusted  by  the 
sheriff  is  the  agent  of  that  officer  for  keeping  it  —  not  of  the 
plaintiff  or  defendant.  It  is  still  in  the  constructive  posses- 
sion of  the  court;  still  legally  in  the  hands  of  the  sheriff  by 
the  bailee  holding  under  him  as  his  representative,  or  agent, 
or  servant." 

§  564.  Beceiptor''s  possession. —  The  receiptor,  while  thus 
holding  things  pending  the  suit,  has  no  such  possession  as 
would  enable  him  legally  to  turn  them  over  to  the  defendant 
free  from  lien,  to  sell  them,  or  otherwise  to  dispose  of  them.' 
He  cannot  appropriate  the  things  to  himself,  subject  them  to 
his  own  use,  and  offer  to  return  equivalents  or  pay  the  value ; 
for  the  officer  has  no  right  to  take  from  him  an  alternate  ob- 
ligation.* 

1  Anthony  v.  Comstock,  1  R.  I.  454.  Hutchins,    19    id.   255 ;    Eastman  v. 

2  Dudley  v.  Lamoille  County  Bank,  Avery.  23  id.  248 ;  Farris  v.  The  State, 
14  Fed.  217.  "The  mere  servant  of  use,  etc.,  33  Ark.  70;  Gilbert  v.  Cran- 
the  sheriff : "  Ludden  v.  Leavitt,  9  dall,  34  Vt.  188.  The  depositary  of 
Mass.  104;  reaffirmed,  Warren  v.  attached  property  is  the  servant  of 
Leland,  id.  265 ;  the  receiptor  is  the  the  sheriff,  Meshew  v.  Gould,  30  La. 
sheriff's  servant,  and  the  sheriff  re-  Ann.  (Part  I),  163. 

tains  the  lawful  possession:   Brow-  3 Bacon  v.  Daniels,  116  Mass.  474 ; 

nell  V.  Manchester,  1  Pick.  232;  re-  Bangs  f.  Beacham,  68  Me.  425 ;  Sibley 

ceiptor    considered    "in    no    other  t".  Story,  8  Vt.  15:  Stimson  i'.  Ward, 

character  than  as  the  servant  of  the  47  id.  624 ;  Haynes  v.  Morgan,  3  Mass. 

officer : "  Bond  v.  Padelford,  13  Mass.  208 ;  Ball  v.  Claflan.  5  Pick.  303. 

395 ;    "  mere     servant :  "     Common-  *  Page  v.  Thrall,  11  Vt.  230  ;  AVater- 

wealth  I'.  Morse,  14  Mass.  217.    To  house  r.  Bird,  37  Me.  326 :  Waterman 

the  same  effect:  Barker  v.  Miller,  6  v.  Treat,  49  id.  309;  Lamb  v.  Day,  8 

Johns.    195;   Brown  v.   Cook,   9   id.  Vt   407;  Sibley  v.  Story,   8   id.  15; 

361;   Dillenback  v.   Jerome,  7  Cow.  Dean  v.  Bailey.  12  id.  142;  Paul  v. 

294;    Roberts    v.   Carpenter,   53  Vt.  Slason,  22  id.  231 ;  Briggs  f.  Gleason, 

678;   Mitchell  v.   Hinman,  8  Wend.  29  id.  78;  Collins  v.  Perkins,  31   id. 

667 ;  Bangs  v.  Beacham,  68  Me.  425 ;  624. 
Torrey  v.  Otis,  67  id.  573 ;  Small  v. 


400  PEOPEKTY    IN    COURT.  [§  oGo. 

Since  the  holding  of  the  keeper  is  under  the  sheriff;  since 
the  latter  retains  the  legal  possession  and  control  so  that  the 
property  is  still  deemed  to  be  in  court,  the  attaching  credit- 
or's lien  is  not  divested  by  the  physical  passage  of  the  prop- 
erty into  the  hands  of  the  receiptor.^  Subsequent  attachments 
may  be  laid  on  the  property  in  his  hands.^ 

§  565.  Dereliction  of  the  receiptor. —  It  is  certainly  in  the 
power  of  the  receiptor  to  destroy  the  lien  in  various  ways. 
He  may  physically  deliver  the  property  to  the  defendant,  or 
whisk  it  off  beyond  the  jurisdiction,  or  commit  it  to  the 
flames.  The  sheriff,  by  reason  of  his  rightful  control,  may 
retake  the  property  from  the  defendant,  pursue  it  beyond  the 
jurisdiction  and  regain  it  by  legal  process  there  and  bring  it 
back,  or  rescue  it  from  the  fire,  if  he  can.  But  if  he  cannot, 
the  lien  of  the  plaintiff  could  not  possibly  be  perfected  by 
judgment,  and  the  court's  jurisdiction  over  the  lost  r«5  would 
be  ousted.  The  plaintiff  would  hold  the  sheriff  responsible ; 
the  sheriff  would  hold  the  receiptor  responsible,  but  the  lien 
would  be  lost  by  the  receiptor's  illegal  act. 

There  is  nothing  specially  remarkable  in  this,  for  an  ordi- 
nary keeper  or  the  sheriff  himself  might  destroy,  transport  or 
abandon  attached  property  so  as  to  defeat  the  lien  and  divest 
the  jurisdiction  so  far  as  the  proceeding  directly  against  the 
property  is  concerned. 

The  abandonment  of  attached  property  to  the  defendant  by 
the  receiptor,  being  an  illegal  act  entitled  to  no  favor,  does 
not  ipso  facto  divest  the  sheriff  of  his  legal  possession,  since 
the  right  remains  in  him  to  take  actual  possession  whenever 
he  can,  and  to  deprive  the  receiptor  of  the  trust  he  is  about  to 

1  Roberts  v.  Carpenter,  53  Vt.  678 ;  tachcd   and  left  in  the  hands  of  a 

IMitchell  V.  Gooch,  60  Me.  110 ;  Bean  third  person  who  gives  no  receipt 

V.    Ayres,    70  id.   431 ;    Whitney  v.  therefor.     Watkins  v.  Cawthorn,  33 

Farwell,  10  N.  H.  9 ;  Kelly  v.  Dexter,  La.  Ann.  1194. 

15  Vt.  310;  Rood  v.  Scott,  5  id.  263;  2  Bell  v.  Shafer,  58  Wis.  223;  Pat- 
Beach  V.  Abbott,  4  id.  605 ;  Pierson  v.  terson  v.  Stephenson.  77  'Mo.  329 ; 
Hovey,  1  D.  Chipman  (Vt.),  51 ;  Enos  Pond  v.  Baker,  58  Vt.  293.  See  Fel- 
V.  Brown,  id.  280 ;  Stowe  v.  But-  lows  v.  Wadsworth,  62  N.  H.  26.  The 
trick,  125  Mass.  449 ;  Woodward  v.  bailee  or  receiptor  cannot  deny  that 
Munson,  126  id.  102 ;  Tomlinson  v.  he  received  the  goods  from  the  offi- 
Collins,  20  Ct.  364.  Tlie  slieriff  re-  cer.  Allen  v.  Butler,  9  Vt.  122. 
tains   legal  possession   of  money  at- 


5GG.] 


KEEPERS    OR    RECEIPTORS. 


401 


abuse,  or  deprive  the  defendant  of  the  property  when  the 
trust  has  been  thus  abused.^ 

§  5GG.  Kecp'uKj,  relative  to  the  lien. —  Whether  or  not  the 
lien  is  lost  by  the  unlawful  restoration  to  the  defendant  de- 
pends upon  attendant  circumstances.  If  the  sheriff  knowingly 
lets  personal  property  remain  in  the  debtor's  hands  so  that 
he  ceases  to  be  the  legal  custodian,  and  the  debtor  conveys 
them  to  an  innocent  third  person  purchasing  for  value  and 
a'cttino^  delivery,  the  court's  control  would  be  broken  and  the 
lien  by  attaching  would  be  lost.- 

AVhen  a  sheriff  takes  a  receipt  with  the  alternate  obliga- 
tion assumed  by  the  receiptor  to  return  the  goods  on  demand 
or  pay  their  value  (which  is  illegal,  and  to  be  construed  as  a 
])roraise  to  return  the  goods),'  it  seems  that  the  lien  would  be 
lost  immediately  upon  his  restoration  of  the  property  to  the 
defendant/ 

The  receiptor  cannot  avail  himself  of  trifling  errors  in  the 
])roceedings  for  the  purpose  of  avoiding  his  obligations.^    But 


1  Bean  v.  Ayres,  70  Me.  421 ;  Wood- 
ward V.  MuDson,  126  Mass.  102. 
Cases  cited  in  preceding  note,  and 
Briggs  V.  Mason,  31  Vt.  433 ;  Rood  v. 
Scott,  5  id.  263 ;  Sibley  v.  Story,  8  id. 
15 :  Bond  v.  Padelford,  13  Mass.  394 : 
'"The  special  propertj"  remained  in 
him  [the  sheriff],  and  he  had  a  com- 
plete right  to  the  possession."  Odi- 
orne  v.  CoUey,  2  N.  H.  66 ;  Whitney 
V.  Farwell,  10  id.  9. 

-  Baker  v.  Warren,  6  Gray,  527 ; 
Whitney  v.  Farwell.  10  N.  H.  9; 
Davis  I'.*  Miller,  1  Vt.  9;  Daker  v. 
Fuller,  21  Pick.  318;  Tomlinson  r. 
Collins,  20  Ct.  364;  Thompson  v. 
Baker,  74  Me.  48.  See  Sherrod  v. 
Davis,  17  Ala.  812. 

3  Sibley  v.  Story,  8  Vt.  15. 

*In  Robinson  v.  Mansfield,  13  Pick. 
142,  it  was  insisted  upon  by  counsel 
that  notwithstanding  the  restoration 
to  the  defendant  of  attached  prop- 
erty by  one  Kimball,  receiptor,  the 
sheriff  retained  the  legal  possession, 
etc.,  but  the  court  said :  "  This  ob- 
26 


jection  is  invalid,  for  the  lien  had 
been  discharged  and  the  obligation 
of  Kimball  substituted  for  the  goods. 
It  has  always  been  held  that,  where 
goods  attached  are  placed  in  the  cus- 
tody of  a  receiptor  in  the  usual  mode 
and  delivered  to  the  debtor,  they  may 
be  conveyed  by  the  debtor  or  be 
attached  again  at  the  suit  of  another 
creditor."  In  Denny  v.  Willard,  11 
Pick.  519,  it  is  held  that  the  defend- 
ant may  sell  property  returned  to  him 
by  a  receiptor,  and  tliat  if  they  re- 
main subject  to  the  attachment,  the 
general  property  will  pass  by  the 
sale,  subject  only  to  the  lien.  Of 
course,  any  attachment  defendant 
may  sell  subject  to  the  lieu,  even 
when  his  attached  property  is  under 
the  sheriffs  bolts  and  bars. 

5  Hunter  v.  Peaks,  74  Me.  363, 
where  a  receiptor  sought  to  avail 
himself  of  an  error  in  the  defend- 
ant's name  —  C.  Wood  instead  of  Rob- 
ert C.  Wood.  In  Shaw  r.  O'Brion, 
69    Me.   501,   the    error    of   writing 


■±02  PROPERTY    IN    COURT.  [§§  567,  568. 

an  error  in  the  amount  stated  in  bis  receipt  or  certificate  to 
the  sheriff  may  be  corrected,  by  proper  showing,  when  he  is 
sued  for  the  sum  stated.^ 

§  567.  The  rule  seems  to  be  that  the  court's  possession  and 
jurisdiction  remain  inviolate,  even  when  the  property  is  phys- 
ically in  the  defendant's  hands,  if  he  holds  under  the  sheriff 
after  attachment  and  after  it  has  been  intrusted  to  a  bailee  or 
receiptor,  provided  he  derives  his  custody  of  it  from  such  re- 
ceiptor and  does  not  have  any  independent  right  to  hold.  If 
he  is  permitted  to  hold  adversely  to  the  sheriff,  it  is  not  pos- 
sible that  the  court's  possession  can  also  be  maintained  and 
the  attachment  lien  preserved.-  Whoever  ma}''  be  the  agent 
holding  under  the  sheiriff,  the  latter  must  have  the  legal  pos- 
session and  control ;  and.  unless  there  are  circumstances  justi- 
fying constructive  possession,  it  must  be  actual,  in  the  hands 
of  the  officer  or  his  agent.*  Demand  on  the  keeper  should  be 
made  before  the  execution  expires.*  It  is  the  duty  of  the  of- 
ficer to  recover  the  property  from  him.^ 

§  568.  Keeper  a  siib-agent. —  The  relation  of  the  keeper  is  to 
the  sheriff;  he  is  not  directly  the  agent  of  the  court  in  his 
custody  of  the  property,  but  a  sub-agent;  he  is  the  direct  rep- 
resentative of  the  executive  officer;  and  if  he  has  any  cause 
of  complaint,  he  must  look  to  his  immediate  principal,  and 
may  sue  him.^ 

"When  the  immediate  principal  is  released  from  his  duties 
as  custodian  by  the  dissolution  of  the  attachment,  it  is  for 
him  to  discharge  the  receiptor.  When  the  latter  was  appointed 
administrator  of  the  estate  of  the  defendant,  it  was  held  that 
his  office  of  keeper  ceased  because  the  death  dissolved  the 
attachment.''    Insolvency  adjudged  against  the  debtor  before 

"Augustu"  instead  of  "Augustus"  9;  Thompson  v.  Baker,  74  Me.  48; 
in  the  certificate  of  a  register  of  deeds  Bicknell  v.  Hill,   33  id.   297 ;  Wads- 
was  held  fatal,  so  that  no  lien  was  worth  v.  Walhker,  45  la.  395. 
created  on  the  estate  of  '■  Augustas."  *  Adler  v.  Roth,  2  McCrary,  445. 
But  this  is  not  inconsistent  with  the  ■•  Allen  v.  Carty,  19  Vt.  65. 
case  above  cited  respecting  receipt-  5  Allen  v.  Doyle,  33  Me.  420. 
ors  of  attached  property.  ^  Stowe  v.  Butrick,  125  Mass.  449. 

lAlmy  V.  Thurber,   65  How.   Pr.  6'ee  Adams  u.  Fox,  17  Vt  361. 

481.  '^  Dwyer  v.  Benedict,   12  R.  I.   459. 

2  Bridge  v.  Wyman,  14  Mass.  190,  But  see  McClellan  v.  Lipscomb,  56 

195 ;  Whitney  v.  Farwell,  10  N.   H.  Ala.  255. 


g^  5(!0,  570.]  KEEPERS    OK   RECETPTOBS.  403 

<lemand  on  the  receiptor  of  attached  property  has  been  held 
to  relieve  him  from  his  duty  to  deliver  to  the  attachment 
officer.' 

§  569.  Defendant's  emjyJoyeej  as  keeper. —  When  his  ^oods 
are  detained  in  the  store-house  of  the  defendant,  with  his 
assent,  it  is  not  uncommon  for  the  seizing  officer  to  appoint 
the  defendant's  storeheeper  or  warehouseman  to  be  the  keeper 
under  the  attachment.  Under  such  appointment  the  ware- 
houseman becomes  the  servant  of  the  shoriff,  and  the  goods 
are  legally  in  court.  The  sheriff  may  appoint  any  other  than 
the  warehouseman;  or  he  may  remove  him  after  appointment 
and  substitute  another  keeper,  since  the  court  will  look  to  the 
officer  himself  for  the  faithful  custody  of  the  property.-  It  is 
therefore  not  as  the  defendant's  employee  that  suc^i  person  is 
selected,  smce  he  must  divest  himself  of  that  character  upon 
accepting  the  appointment.  To  leave  the  goods  in  his  charge 
while  he  is  yet  the  representative  of  the  attachment  debtor 
would  be  equivalent  to  their  restoration  to  the  defendant, 
which  would  be  an  abdication  of  jurisdiction  and  relinquish- 
ment of  lien.^  It  has  been  held  that  the  sheriff  cannot  ap- 
l)oint  the  defendant's  employee  as  keeper.* 

§  570.  Defendant's  wife  as  Iceeper. —  Were  household  goods 
seized,  and  the  debtor's  wife  made  keeper  (where  the  statute 
allows  married  women  to  do  business  on  their  own  account, 
independent  of  their  husbands),  and  she  permitted  to  use  the 
goods  in  the  family  as  usual,  they  must  be  held  by  her  as  the 
subordinate  of  the  sheriff,  who  is  responsible  for  their  safe- 
keeping and  preservation  and  all  loss  of  "wear  and  tear"  in 
such  an  extreme  case.  And  so,  also,  when  any  other  keeper 
allows  the  debtor's  family  to  use  attached  goods.^ 

1  Wright  V.  Morley,  150  Mass.  513;  294;  Flanagan  v.  Wood,  33  Vt  332; 

Wright  V.  Dawson,  147  id.  384.  Taintor  v.  Williams,  7  Ct  271 ;  Knap 

■^Frounstein  v.   Rosenham,  22  La.  v.  Sprague,   9   Mass.   258;    Baker  v. 

Ann.   525;  Train   i:   Wellington,   12  Warren,  6  Gray,  527;  Thompson  v, 

Mass.  495 ;  Bakhvin  v.  Jackson,  id.  Baker,  74  Me.  48 ;  Farris  v.  The  State, 

131.  use,  etc..  33  Ark.  70. 

3Montpelier  &  Wells  River  R  R.  ^  Russell  v.  Mayor,  29  Mo.  App.  1G7. 

Co.  V.  CofTrin,  52  Vt  17;  Charuock  v.  ^Farrington  v.   Edgerly,  13  Allen, 

Colfax,  51  la.  70 ;  Gower  v.  Stephens,  453 ;  Young  v.  Walker.  12  N.  H.  502 ; 

19  Me.  92 ;  Pillsbury  v.  Small,  id.  435 ;  Bagley  v.  White.  4  Pick.  395 ;  Bridge 

Pomeioy  v.  Kiugsley,  1  Tyler  (Vt.),  v.  Wyman,  14  Mass.  190;  Baldwin  v. 


40i  PKOPERTY   IN   COUKT.  [^§  571, 572. 

§  571.  Mortgagee  as  lieeper. —  A  debtor  gave  a  bill  of  sal© 
of  personal  property,  and  agreed  that  the  nominal  vendee 
(who  was  a  mortgagee)  should  hold  the  property  till  a  debt, 
owing  to  that  vendee  and  another  person,  should  be  paid. 
Another  creditor  attached  the  property.  The  vendee  Avas 
made  keeper.  He  subsequently  conveyed  his  interest  to  his 
own  co-creditor  and  delivered  the  property  to  him.  Under 
these  circumstances  it  was  held  error  to  charge  the  jury  that 
the  attachment  lien  was  lost  by  the  sheriff's  leaving  the  prop- 
erty in  the  possession  of  the  mortgagee  as  keeper.^  Indeed, 
while  the  property  was  lawfully  in  the  hands  of  the  holder  of 
a  perfect  lien,  what  right  would  the  officer  have  had  to  take 
it  out  of  them  for  the  purpose  of  creating  a  hypothetical  one? 
The  court  said  that,  by  accepting  the  trust  as  keeper,  the 
mortgagee  was  estopped  from  denying  the  validity  of  the  at- 
tachment lien.  It  certainly  seems  that  the  mortgagee  could 
have  done  better  than  accept  the  appointment  from  the  sher- 
iff; he  might  have  stood  upon  his  prior  right  to  hold  as  a 
chattel  mortgagee  in  possession. 

§572.  Delivery  ly  Iceeper. —  The  keeper  is  estopped  from 
claiming  to  own  the  property,  because  he  has  taken  charge  of 
it  as  custodian  for  another."^  He  may  defend  his  possession 
on  the  ground  that  the  officer  is  not  bound  to  return  the  prop- 
erty to  the  owner,  it  is  said ;  ^  and  when  he  has  delivered  it 
to  the  rightful  owner  and  possessor  — the  terms  of  his  receipt 
to  the  sheriff  warranting  that  course  —  it  is  held  that  the  offi- 
cer cannot  recover  of  him  as  his  bailee.  This  is  held,  though 
such  "  rightful  owner "  be  a  third  person.*  He  is  not  exon- 
erated from  liability,  however,  because  another  officer  has 
re-seized  the  property.^ 

The  keeper  cannot  defend  by  impeaching  the  attachment 
judgment.^  He  must  restore  the  property  to  the  sheriff  on 
demand,  and  the  sheriff  must  return  his  receipt.'^ 

Jackson,    12  id.  133 ;  Train  v.  Well-        ^  ]\iason  v.  Aldricli,  36  Minn.  288. 

ington,  id.  497 ;  Denny  v.  Warren,  16        ^  Rider  v.  Sheldon,  o6  Vt.  459. 

id.  420;  Gordon  v.  Jenny,  id.  465.  SHolcombu.  Lumber  Co.,  39  Minn. 

1  Moresi  v.  Smith,  15  Nev.  245.  342 :  Burk  v.  Webb,  32  Mich.  173. 

'•«  Cornell  v.   Dakin,  38  N.  Y.  253;         ^Gilmore  v.   McNeil,  45  Me.  599; 

People  V.  Reader.  25  id.  302.  Hinckley  i".  Bridgham,  46  id.  450. 

3  Wright  V.  Dawson,  147  Mass.  884. 


§§  o73,  574.]  DEFENDANT  HOLDIXG  UNDER  SHERIFF.  405 

III.  Defendant  Holding  Under  the  Sheriff. 

§  573.  Sliei'ifs  agent. —  If,  under  the  operation  and  author- 
ization of  a  statute,  the  sheriff  may  leave  attached  property 
in  the  hands  of  the  defendant,  it  is  always  only  as  agent  that" 
the  latter  holds.  He  cannot,  under  any  statute,  have  legal 
possession  independent  of  the  sheriff  and  of  the  court,  after 
attachment,  without  destruction  of  the  entire  effect  of  the  act 
of  seizing  under  the  writ.  He  must  hold  under  the  sheriff; 
be  amenable  to  the  orders  of  the  sheriff  so  that  the  latter  may 
always  be  enabled  to  obey  the  court  when  mandates  are  issued 
concerning  the  property.  There  cannot  be  even  constructive 
custody  unless  the  sheriff  or  other  officer  immediately  under 
the  court  has  actual  control  so  as  to  be  really  the  legal  custo- 
dian.^ 

§  574.  As  affecting  the  lien. —  If,  upon  his  own  responsibil- 
ity, the  sheriff  leaves  property,  which  is  susceptible  of  actual 
manipulation  and  removal,  in  the  hands  of  the  attachment 
debtor,  taking  his  receipt  therefor,  such  officer  would  be  an- 
swerable to  the  attachment  plaintiff  for  thus  destroying  the 
lien,  should  it  thus  be  destroyed.  Whether  or  not  it  would 
be  depends  entirely  upon  the  legal  capacity  in  which  the  de- 
fendant holds  possession.  Is  his  arrangement  such  that  he 
cannot  sell  his  property  free  from  incumbrance;  cannot  de- 
liver it  if  sold ;  cannot  administer  it  except  under  the  surveil- 
lance of  the  sheriff?  If  so,  he  cannot  set  up  that  the  lien  is 
gone.  And  if  third  persons  have  knowledge  of  such  arrange- 
ment they  are  also  estopped.  Under  such  circumstances  (if 
there  is  nothing  to  the  contrary  in  the  statutes  or  settled  prac- 
tice of  the  state  where  the  proceeding  is  had),  the  intrusting 
of  the  propert}^  to  the  defendant  upon  his  receipting  for  it  as 
keeper  is  not  necessarily  and  invariably  a  ground  for  the  dis- 
solution of  the  attachment.^  The  defendant  may  agree  to 
pay  the  sheriff  for  the  keeper,^  or  he  may  agree  to  pay  the 

1  If  tlie  plaintiff  authoi-ize  the  sher-  Trafton^  7  id.  178 ;  Philips  v.  Bridge, 

iff  to  yield  the  property  on  receipt,  it  11  Mass.  242;  Bridge  v.  Wymau,  14 

may  be  done  without  liability  on  the  id.  190;  Lyman  v.  Lyman,  11  id.  317; 

sheriff's  part.     Davis  v.  Maloney,  79  Constructive  possession :    Moresi    v. 

Me.  no.  Swift,  15  Nev.  215. 

-  Cougdon  V.  Cooper,  15  Mass.  10 ;        3  Murtagh  v.  Connor,  15  Hun,  488 ; 

Cooper  V.  Mowry,  16  id.  8 ;  Carr  v.  Brown  v.  Cooper,  65  How.  Pr.  126. 
Farley,    12   Me.    328;    Woodman  v. 


406  PROPERTY  IN  COURT.  [§§  575-577. 

plaintiff,  in  which  case  the  keeper's  wages  need  not  be  taxed 
as  costs,  yet  the  plaintiff  may  sue  the  defendant  on  such  an 
agreement.^ 

§  575.  Preventing  ivaste. —  Where  property  is  attached  for 
a  debt  not  due,  the  attachment  is  the  gist  of  the  action,  and 
the  court  in  which  it  is  brought  has  jurisdiction  and  power  to 
protect  the  sheriff  in  his  possession.  In  such  case,  if  land  has 
been  attached,  the  court  from  which  the  writ  is  issued  may 
prevent  the  defendant  from  wasting  the  lands,  cutting  timber, 
etc.,  and  the  attaching  creditor  or  the  sheriff  need  not  resort 
to  another  court  for  an  injunction.- 

§  576.  Cost  of  Tieejnng,  etc. —  The  keepers  have  to  be  com- 
pensated ;  the  expenses  of  removing,  preserving,  and  various 
outlays  have  to  be  met.  The  sheriff,  if  he  has  been  obhged 
to  advance  for  these,  is  entitled  to  reimbursement  on  showing 
their  necessity  and  reasonableness.  He  is  himself  entitled  to 
nothing  for  his  personal  services  beyond  his  fees.' 

TV.  Receivers. 

577.  Heceiver  as  custodian. —  Attached  property  is  held  to 
be  in  custody  of  the  law,  and  therefore  cannot  be  transferred 
to  a  receiver  on  filing  a  creditor's  bill,  in  Alabama.*  And  that, 
for  the  appointment  of  a  receiver,  the  case  should  be  urgent 
and  the  affidavit  strong  and  clear,,  since  the  owner  would  be 
dispossessed  without  bond  to  secure  him.^  Attached  prop- 
ert}'^  intrusted  to  a  receiver  remains  in  custodia  legist 

While  a  court  of  equity  may  appoint  a  receiver  of  lands  in 
a  state  beyond  its  jurisdiction,  it  cannot  restrain  a  creditor 

1  Clark  V.  Gamvvell,  125  Mass.  428.     Burk  v.   Webb,  32  id.  173 ;  King  tv 

2  Cooney  v.   Moroney,  45  la.    293.     Shepherd,  68  la.  215. 

Injuuction   had  been   issued  in  the        *  DolHns  v.  Lindsey,  89  Ala.  217; 

district  court,  and  motion  made   to  Read  v.  Sprague,  34  id.   101 ;  Kemp 

dissolve  it  on  the  ground  that  it  af-  v.  Porter,    7    id.    138 ;    Langdon    v. 

fected  the  subject-matter  of  the  at-  Brumby,  7  id.  53 ;  Rives  v.  Welborne, 

tachment  suit  in   the  circuit  court.  6  id.  45. 

Under  section  3389  of  the  lovra  code,        ^  Dollins  v.  Lindsey,  supra;  Moritz 

held  as  stated  in  the  text.     No  action  v.  Miller,  87  Ala.  331 ;  Thompson  v. 

could  have  been  brought  on  the  debt  Tower  Manuf.  Co.,  87  id.  733 ;  Weis 

not  due,  except  aided  by  attachment,  v.  Goetter,   72    id.    259;    Hughes  v. 

Id.,  ^  2956.  Hatchett,  55  id.  631 ;  Brierfield  Works 

3  Fletcher  v.  Morrell,  78  Mich.  176;  v.  Foster,  54  id.  622. 

6  Wall  V.  Pulliam,  5  Heisk.  365. 


§§  578,  579.]  gaknisiiee's  possession.  407 

there  from  attaching  the  lands  there,  unless  he  is  a  party  to 
the  suit  in  which  the  receiver  was  appointed.^  If  he  is  a  party- 
be  may  be  enjoined.' 

§  578.  Receivers,  etc.,  ivlien  adi^rse  to  the  attachment. —  A 
receiver  appointed  by  a  state  court  was  allowed  to  proceed  by 
rule  without  intervention,  in  a  federal  court,  to  set  aside  the 
attachment  of  property  held  by  him  as  receiver.^  A  syndic, 
appointed  after  attachment  for  defendant's  adjudged  insolv- 
ent, cannot  remain  silent  till  judgment  in  the  attachment  case 
and  then  successfully  claim  priority  over  the  attaching  cred- 
itors' He  should  have  intervened  when  the  case  was  pend- 
ing.* A  mortgagee  may  have  a  receiver  appointed  to  take 
care  of  chattels  notwithstanding  their  attachment  and  sale  by 
unsecured  creditors,  it  has  been  held:^  should  he  not  have  in- 
tervened when  the  case  was  pending? 

A  creditor,  by  attaching  funds  before  a  receiver  is  ap- 
pointed, cannot  succeed  in  an  application  to  have  his  judgment 
satisfied  by  the  receiver  so  far  as  not  satisfied  from  the  funds 
attached,  for  its  right  of  preference  is  confined  to  his  attach- 
ment lien  on  those  funds.  An  attachment,  made  before  the 
appointment  of  a  receiver  for  a  corporation,  will  hold  good 
notwithstanding  an  injunction  restraining  the  corporation 
from  paying  debts  or  making  transfers.*'  And  it  has  been 
held  to  date  from  the  issue  of  the  writ  as  to  the  rights  of  the 
receiver  appointed  after  the  issue ; '  but  this  would  not  hold 
where  the  lien  arises  upon  the  execution  of  the  writ,  for  its 
bearing  upon  a  receiver  must  be  the  same  as  upon  others. 

Y.  The  Gaenishee's  Possession. 

§  579.  Nature  of. —  The  character  of  the  garnishee's  lien  is 
that  of  a  depositary.  The  lien  is  a  mere  right  to  hold,  not  a 
right  in  the  thing  to  secure  debt.     And  this  right  to  hold  is 

1  Schindelholz  v.  Cullem,  55  Fed.  ^  Muser  v.  Kern,  55  Fed.  916.  Same 
885.  principle  in  a  mortgage  case.   Eyster 

2  Id. ;  Vermont,  etc.  R  Co.  v.  Rail-  v.  Gaflf,  91  U.  S.  521.  See  Miller  v. 
road  Co.,  46  Vt.  792 ;  Chafee  v.  Quid-  Marigny.  10  La.  Ann.  338. 

nick,  13  R.  I.  442 ;  Sercomb  v.  Catlin,  5  Cooper  v.  Berney  N.  Bank  (Ala.), 

128  111.  556 ;  Langford  v.  Langford,  11  So.  760. 

5  Law  J.  Ch.  (N.  S.),  60.  ^  Minchen    v.    Peterson    Bank,  36 

3  Remington  Paper  Co.  v.  Printing  N.  J.  Eq.  436. 

Co.,  56  Fed.  287.  ''  Breene  v.  Bank,  11  Colo.  97. 


408  PKOPERTY   IN    COUET,  [§  580. 

not  created  by  the  summons,  but  must  be  existent  before  the 
service  of  the  process  of  garnishment.  It  is  derived  from  the 
owner  of  the  goods.  The  only  effect  which  the  garnishment 
has  upon  the  right  to  hold  is  to  render  it  inalienable  while  the 
garnishment  is  pending. 

The  action  which  the  garnishee  has  against  a  person  dis- 
turbing his  possession  is  not  because  he  is  a  garnishee,  but 
because  he  is  the  lawful  possessor.  Any  depositary  has  an 
action  against  the  disturber  of  his  lawful  possession  of  the 
propertN'"  of  another. 

The  divested  garnishee  can  recover  only  nominal  damages 
if  no  loss  has  been  entailed.  His  action  would  be  like  that  of 
one  seizino-  officer  against  another  who  has  divested  him  of 
possession,  after  it  turns  out  that  the  second  seizure  holds 
good  through  judgment  and  execution  while  the  first  becomes 
nugatory  by  subsequent  failure  of  the  plaintiff,  who  caused  its 
issue,  to  obtain  judgment.  An  action  of  trespass  would  lie, 
but  only  nominal  damages  could  be  recovered.^ 

This  qualified  property  right  is  such  that  the  garnishee  may 
insure  the  goods  which  he  holds,  may  sue  those  who  disturb 
his  possession,  without  bringing  his  action  in  the  name  of 
either  the  attaching  creditor  or  of  the  owner  of  the  property. 
His  position  is  similar  to  that  of  a  sheriff  who  holds  attached 
property,  who  certainly  may  protect  it  in  his  own  name.- 

§580.  Siiecial  'proiierty. —  The  garnishee  is  considered  to 
have  a  sort  of  special  property  in  that  which  is  seized  in  his 
hands.  He  has  no  right  to  sell  or  otherwise  dispose  of  it. 
He  is  accountable  to  neither  the  plaintiff  nor  the  defendant,^ 
but  he  Avill  be  accountable  to  one  or  the  other  at  the  end  of 
the  litigation.  Should  he  relinquish  possession  in  favor  of 
the  owner  or  of  a  stranger,  he  would  thus  destroy  the  plain- 
tiff's lien  but  would  make  himself  immediately  responsible  to 
the  plaintiff  to  the  degree  of  injury  already  inflicted,  and  to 
the  entire  value  of  the  property  should  the  claim  cover  it  all, 
and  should  the  claim  be  lost  by  reason  of  the  wrongful  relin- 
quishment of  possession. 

The  garnishee's  qualified  property  in  the  thing  seized  in  his 
hands  is,  in  one  sense,  independent  of  both  parties,  since  it  is 

1  Goodrich  v.  Church,  20  Vt.  187.  2  white  v.  Madison,  26  How.  Prac. 

481. 


§§  581,  5S2.]  gaknishee's  possession.  409 

yet  uncertain  to  which  he  may  be  eventually  accountable.  The 
attaching  creditor  cannot,  on  motion,  obtain  au  order  to  have 
the  property  delivered  to  the  sheriff.^ 

§  581.  Holding  goods  and  effects. —  Goods  subjected  to  gar- 
nishment rightly  remain  in  the  garnishee's  hands  iill  judgment 
and  execution.-  If,  however,  the}'  are  seized  wrongfull}^  by 
the  sheriff  in  execution  of  a  judgment  in  another  suit,  they 
ought  to  be  held  subject  to  the  lien  created  by  the  garnish- 
ment. If  not  so  held,  but  executed  to  satisf}'"  the  judgment 
upon  which  the  sheriff  seized,  that  ofKcer  would  be  responsible 
to  the  o-arnishee  for  whatever  the  latter  should  be  condemned 
to  pay  to  the  attaching  creditor  in  the  first  suit;  or  he  would 
be  responsible  to  that  creditor  upon  the  maturity  of  his  gar- 
nishment lien  by  judgment. 

However  much- the  goods  may  exceed  in  value  the  claim  of 
the  first  attaching  creditor,  the  second  should  proceed  b}' 
garnishment  whether  he  alread}"  has  judgment  or  not,  and  so 
should  all  who  look  to  those  goods  for  the  making  of  their 
money;  the  goods  meanwhile  remaining  in  the  hands  of  the 
garnishee,  whose  right  to  hold  them,  originally  derived  from 
the  defendant,  becomes  a  duty  by  reason  of  the  summons. 
Therefore  if  the  goods  should  be  seized  under  process  and 
taken  out  of  his  hands,  it  is  clear  that  he  ought  to  have  his 
remedy  against  the  seizing  officer  who  thus  subjects  him  to 
any  loss. 

§  582.  As  to  junior  garnishors. —  The  garnishment  puts 
the  goods  in  such  position  relative  to  other  creditors  of  their 
owner  as  a  seizure  in  execution  puts  property  relative  to  those 
who  have  junior  executions.  Propert}^  seized  by  a  sheriff  in 
execution,  though  worth  much  more  than  what  is  necessary  to 
satisfy  the  judgment,  cannot  be  taken  out  of  the  sheriff's 
hands,  nor  can  any  portion  of  it  be  so  taken,  under  the  later 
executions.  The  junior  creditors  must  put  their  writs  in  the 
sheriff's  hands  and  abide  their  turn  after  the  first  execution 
has  been  satisfied.  So  when  one  garnishment  has  been  made, 
others  may  be  made,  but  the  goods  should  be  left  with  the 
garnishee.  And  when  an  execution  by  a  judgment  creditor 
comes  into  competition  with  the  immature  lien  of  an  attach- 
ing creditor,  the  goods  subjected  to  garnishment  ought  to  be 

1  Hall  V.  Brooks,  89  N.  Y.  33.  -  But  see  Maish  v.  Biair,  48  Fed.  607. 


410  PEOPEKTY  IN  COUET.  [§§  583,  584. 

left  with  the  garnishee  and  not  taken  into  the  actual  custody 
of  the  seizing  officer,  'No  injury  to  the  garnishee  or  to  the 
plaintiff  in  garnishment  may  result  by  such  taking,  if  the 
sheriff  holds  them  subject  to  judgment  upon  the  garnishment; 
for  the  garnishee,  having  no  interest  beyond  being  held  harm- 
less, may  not  be  wronged  by  deprival  of  possession,  provided 
the  goods  are  forthcoming  when  needed  to  satisfy  the  gar- 
nishment creditor's  demand.  So  the  latter,  if  neither  hindered 
nor  defeated  by  the  actual  subsequent  seizure,  would  have 
nothing  of  which  to  complain:  the  officer  holding  the  goods 
subject  to  the  garnishment.^ 

§  583.  Stalicliolder. —  The  garnishee  is  frequently  said  to  be 
a  mere  stakeholder.  Owing  a  debt,  it  matters  nothing  to 
him  whether  he  pa3^s  it  to  the  plaintiff  or  to  the  defendant, 
provided  his  obligation  to  the  latter  is  canceled.  Holding 
property  not  his  own,  it  matters  nothing  to  him  whether  he 
delivers  it  to  the  plaintiff  for  the  purpose  of  execution  or  to 
the  defendant  owner,  provided  such  delivery  acquits  him  of 
all  responsibility.  It  is  when  the  third  person  is  thus  wholly 
disinterested  that  the  process  of  garnishment  is  rightly  applied 
to  him.  He  cannot  justly  be  subjected  to  the  process  to  his 
own  injury.  He  cannot  be  made  to  pay  his  debt  before  it  is 
due  nor  to  deliver  goods  during  the  time  in  which  he  may,  by 
previous  contract  or  otherwise,  be  entitled  to  retain  them. 

§  584.  As  he  owes  the  defendant  or  holds  his  property,  he 
is  bound  to  keep  what  he  has  for  account  of  w4iom  it  may 
concern.  He  cannot  change  property,  convert  it  into  money 
or  play  the  owner,  but  must  consider  himself  as  the  keeper, 
just  as  though  appointed  such  by  the  sheriff  or  the  marshal 
in  the  case  of  the  ordinary  seizure  of  personal  property.-  If 
the  garnishment  covers  such  chattels,  etc.,  of  the  defendant 
as  may  come  into  his  hands  after  its  service  upon  him,  he  is 
equally  bound  to  hold  and  account  for  them.  He  acquires  no 
right  of  ownership  in  any  sense ;  no  more  than  an  ordinary 
custodian  appointed  by  a  seizing  officer.  He  is  bound  to  use 
ordinary  diligence  to  preserve  what  he  thus  holds  and  is  re- 

1  Burlingame  v.  Bell,  16  Mass.  318 ;  Brashear  v.  West,  7  Pet.  608 ;  Briggs 
Svvett  V.  Brown,  5  Pick.  178;  Rock-  v.  Kouns,  7  Dana,  405.  See  Staniels 
wood  V.  Varnum,  17  id.  289.  v.  Raymond,  4  Gush.  314 

2  Mattingly  v.  Boyd,  20  How.  128 ; 


§§  585,  58G.]  gaknishee's  possession.  411 

sponsible  in  damages  for  any  dereliction  in  this  duty,  recover- 
able by  the  injured  party. 

§  585.  His  rUjUts  i)rescrvcd. —  On  the  other  hand,  the  gar- 
nishee loses  no  rights  Avhich  he  previously  possessed.  While 
bound  to  hold  what  belongs  to  the  defendant,  he  is  not  bound 
to  hold  more;  and  therefore,  if  he  has  made  cash  advances 
under  the  general  custom  of  merchants  so  as  to  be  entitled  to 
tiieir  return,  to  commission  and  factorage,  he  has  an  interest 
in  the  goods  he  holds  which  is  not  subject  to  the  garnishment. 
And  this  interest  is  accompanied  by  the  right  to  sell,  accord- 
ing to  the  usages  of  trade.  He,  an  innocent  third  person, 
would  be  injured  by  the  garnishment,  if  such  process  prevents 
him  from  getting  his  own  without  awaiting  the  termination 
of  a  lawsuit  between  other  parties  with  which  he  has  no 
concern. 

Since  the  debtor  himself  had  no  right  to  forbid  his  factor  to 
sell  under  such  circumstances,  how  can  the  debtor's  creditor 
acquire  greater  rights  through  the  process  of  garnishment? 
He  could  have  forbidden  sale  after  first  tendering  the  factor 
his  advances;  and  so  can  the  attaching  creditor.  Neither 
may  go  beyond  this  without  injury  to  the  factor;  and,  not 
only  injury  to  him,  but  to  commerce  and  the  public  interest.* 

§  586.  The  general  rule  that  the  garnishee  is  bound  to  hold 
and  preserve  what  is  attached  in  his  hands,  in  the  same  condi- 
tion as  when  served  with  the  summons,  without  changing  it 
or  making  any  disposition  of  it,  must  be  understood  with  ref- 
erence to  the  usages  of  business  and  the  true  interest  of  the 
l^arties  concerned.  A  bank,  holding  a  note  deposited  for  col- 
lection, belonging  to  the  defendant,  which  comes  due  after 
the  garnishment  of  the  bank  by  an  attaching  creditor,  may 
yet  sue  upon  the  note  and  convert  it  into  money.-  Were 
the  note  nearing  prescription,  a  failure  thus  to  proceed  might 
result  in  loss  to  either  the  plaintiff  or  defendant,  and  would 
certainly  be  a  neglect  of  the  duty  of  preserving  what  was 
meant  to  be  attached.  In  such  case,  however,  not  the  bank, 
but  the  defendant's  debtor,  should  be  made  the  garnishee. 

1  Baugh  V.  Kirkpatrick,  54  Pa.  St.  Bredow,  31  Mo.  523.  See  White  v- 
84.  White,  30  Vt.  388 ;  Keyser  v.  Mitch- 

2  Bank  of  the  State  of  Missouri  v.     ell,  G7  Pa.  St.  473. 


41 D  PEOPEETY  IN   COUET.  [§§  587-589. 

§  587.  Smmnary. —  To  recapitulate :  A  garnishee  cannot 
be  lawfully  deprived  of  the  possession  which  he  holds  as  mere 
custodian,  by  means  of  an  execution  issued  in  another  suit  of 
junior  date.^  Should  he  be  so  deprived,  the  property  would 
still  be  subject  to  garnishment.'  He  cannot  voluntarily  di- 
vest himself  and  deliver  the  property  to  the  defendant.''  He 
must  hold  the  goods  from  the  owner,  from  a  purchaser,  from 
every  claimant.*  Even  when  forcibly  divested  he  will  be  pre- 
sumed responsible  for  the  forthcomm^  of  the  property  when 
required ;  and  the  onus  will  be  upon  him  to  show  that  he  did 
his  full  dut}^  as  custodian.'^ 

-  VI.   Sale  of  Perishable  Goods.® 

§  588.  Tlie  order. —  The  court  may  order  the  sale  of  perish- 
able property  that  is  under  attachment.  The  interlocutory 
judgment  is  not  against  the  defendant,  for  it  may  be  rendered 
before  the  appearance  or  default  of  that  party,  and  before  the 
court  has  acquired  any  jurisdiction  over  him.  It  maybe  ren- 
dered before  the  court  has  acquired  any  jurisdiction  over  the 
attached  property  in  the  sense  of  power  to  restore  or  con- 
demn it.  It  may  be  rendered  when  the  judge's  power  is  lim- 
ited to  his  duty  as  judicial  custodian,  charged  with  the  preser- 
vation of  the  property  by  agency  of  the  sub-custodians  who 
are  subject  to  his  behest. 

§  589.  Application  for,  and  proof . —  As  he  is  not  presumed 
to  know  the  facts  as  to  the  state  of  a  thing  seized,  he  does  not 
order  preliminary  sale  without  application  to  him  by  the 
plaintiff  or  the  executive  officer  directly  in  charge  of  it  — 
usually  by  the  former.  The  application  must  be  followed  by 
proof  of  the  allegations  showing  the  perishable  nature  of  the 
property  and  the  necessity  for  its  immediate  conversion  into 
money.  The  order  contemplates  nothing  more  than  such 
conversion.  It  is  no  judgment  affecting  the  claim  of  the 
plaintiff,  nor  the  issue  made  by  the  defendant  if  he  has  already 

1  Scofield  V.  Bradlee,  8  Martin  (La.),  4  stiles  v.  Davis,  1  Black,  101 ;  Wal- 
475;  Erskine  v.  Staley,  12  Leigh,  406.  cott  v.  Kaith,  3  Foster,  196. 

2  Swett  V.  Brown,  5  Pick.  178 ;  Bur-  ^  Despatch  Line  v.  Bellamy  Man. 
lingame  v.  Bell,  16  Mass.  318.  Co.,  13  N.  H.  305 ;  Parker  v.  Kinsman, 

3  Aldrick  V.  Woodcock,  10  N.  H.  99.  8  Mass.  486. 

'^Post,  §§  630,631. 


§§  590,  591.]      SALE  OF  PERISHABLE  GOODS.  413 

appeared  and  pleaded,  nor  any  issue  that  he  may  afterwards 
make  should  his  appearance  be  later  than  the  sale.  Neither 
the  order  nor  the  sale  affects  the  lien  of  the  plaintiff,  except 
that  it  transfers  it  from  the  thing  thus  sold  to  the  cash  sub- 
stitute.^ In  this  there  is  a  marked  difference  between  such 
disposition  of  attached  property  and  its  delivery  upon  the  ex- 
ecution of  a  dissolution  bond.  The  lien  rests  on  the  price 
after  such  sale  so  that  the  purchaser  gets  the  object  free  from 
the  attachment  incumbrance,^  and  all  intervenors  and  junior 
attachers  must  look  to  the  proceeds ;  but,  after  dissolution  by 
bonding,  the  released  property  may  be  re-attached  by  other 
creditors;  they  cannot  come  in  to  claim  on  the  bond.  They 
can  only  come  in  and  thus  claim  in  case  the  release  by  the 
plaintiff  has  affected  their  rights  and  interests  in  such  a  way 
as  to  render  it  necessary  for  them  thus  to  appear,  which 
would  be  a  state  of  things  out  of  the  ordmar3^  The  rule  is 
that  they  must  follow  the  property  itself. 

§  590.  Defendant'' s  rUjlits. —  The  proceeds  are  supposed  to 
be  as  valuable  as  the  article  sold ;  and,  if  this  is  true,  the  de- 
feuLlant,  whether  in  court  or  not,  is  uninjured  by  the  trans- 
action.^ He  ought  to  have  opportunity  to  contest  the  alleged 
necessity  of  the  sale,  because  he  is  the  owner;  and,  when  in 
court,  such  opportunity  is  always  accorded,  and  the  order  of 
sale  would  be  irregular  were  he  not  permitted  to  oppose  it. 
But  if  he  shows  no  good  reason  against  the  solicited  order, 
and  is  merely  aiming  to  reserve  to  himself  an  action  for  dam- 
ages against  the  officer,  or  the  plaintiff,  or  both,  for  not  re- 
storing the  property  after  judgment  of  restoration,  the  court 
should,  upon  evidence  of  the  perishability  of  the  res,  order  its 
transmutation  to  imperishable  cash,  notwithstanding  the  re- 
monstrances of  the  owner. 

§  591.  The  owner  is  protected  from  any  abuse  of  this  ex- 
traordinary conversion  of  his  property  against  his  own  will. 
If  the  sheriff  should  not  use  due  diligence  and  proper  business- 

1  Attachment  is  not  released  by  a  N.  E.  799 ;  Betterton  v.  Eppstein,  78 
sale  pendejife  Zt7e,  on  agreement  of  the  Tex.  443;  Meyer  r.  Sligh,  81  id.  336; 
parties  that  the  proceeds  shall  stand  Welsh  v.  Lewis,  71  Ga  387.  See 
for  the  property  attached  and  thus  Walter  v.  Bickham,  123  U.  S.  820 ; 
sold.     Cressy  v.  Katz  Man.  Co.  (la.),  Young  v.  Kellar,  94  Mo.  581. 

59  N.  W.  63.  -i  Haywood  v.  Hardie,  76  N.  C.  384. 

2  First  N.  Bank  v.  Stanley  (Ind.),  30 


41-i  PKOrERTY    IN    COUKT.  [§  592. 

like  means  to  dispose  of  the  property  at  auction  so  as  to  ob- 
tain a  fair  price,  he  would  doubtlesss  be  liable  to  respond  to 
the  defendant  in  damages.  AVhether  there  finally  be  judg- 
ment of  restoration  or  not,  the  owner  may  be  damaged  by 
official  misfeasance  in  the  matter  of  the  sale;  for,  in  the 
former  case,  the  owner  might  not  have  the  fair  value  of  the 
auctioned  goods  restored  to  him ;  and,  in  the  latter,  not 
enough  would  have  gone  to  his  credit  on  the  judgment.  He 
is  entitled  to  all  the  proceeds,  and  not  liable  for  costs  of  sale 
if  the  attachment  be  dissolved  or  the  suit  dismissed.^ 

The  owner,  if  in  court,  may  protect  himself  from  an  ill- 
advised  application  for  sale  by  bonding.  If  he  does  not  believe 
his  goods  to  be  perishable,  yet  cannot  convince  the  court  that 
he  is  right,  he  may  take  them  into  his  own  custody  by  giving 
a  forthcoming  bond.  If  he  does  believe  them  to  be  perish- 
able, yet  fears  that  they  will  be  sacrificed  by  the  sheriff's  auc- 
tion, he  may  execute  a  dissolution  bond  and  then  dispose  of 
them  as  he  would  have  done  had  there  been  no  attachment : 
work  them  up  in  his  factory ;  ship  them  to  their  original  desti- 
nation in  time  for  the  consignee  to  subject  them  to  the  proper 
and  intended  uses,  or  he  may  sell  them  for  consumption  be- 
fore decay  .'^ 

§  592.  Remediless  wrongs. —  Doubtless  there  are  cases  work- 
ing hardship  for  which  the  owner  has  no  adequate  remedy, 
such  as  the  granting  of  the  order  upon  facts  which  do  not 
warrant  it;  the  exposure  at  auction  when  the  market  is  un- 
favorable; the  inability  of  the  owner  to  protect  himself  by 
bonding,  and  the  like.  But  there  are  misfortunes  incident  to 
almost  all  litigation,  chargeable  to  our  want  of  control  over 
times  and  seasons,  the  fallibility  of  human  judgment,  and  the 
inconveniences  inseparable  from  poverty. 

Such  hardships,  however,  are  little,  compared  with  the  insuf- 
ferable wrong  of  usurping  jurisdiction  over  a  defendant  ab- 
sent, and  over  his  property  present  by  its  proceeds,  and  then 
justifying  such  usurpation  on  the  ground  of  the  right  to  sell 
the  property  as  perishable.  If,  without  being  summoned  or 
notified  by  publication,  and  without  appearing,  the  defendant 
owner  may  have  his  property  sold  by  the  judicial  custodian  to 

1  Littlefleld  v.  Davis,  G2  N.  H.  492.        261 ;  State  v.  Judge  of  Court,  44  id. 
^  State  V.  RiclPiardson,  37  La.  Aim.    87;  Code  Prac.  La.,  art.  261. 


§3  593,  51)4.]  LOSS  OF  custody.  415 

preserve  it,  at  the  solicitation  and  upon  the  representation  of 
those  who  are  not  owners  —  of  those  who  have  not  j'^et  estab- 
lished the  allegation  that  they  are  even  creditors  of  the 
owner  —  that  is  a  sufficient  interference  with  private  rights 
and  is  justifiable  only  on  the  plea  of  necessity.  To  conclude, 
because  a  court  may  go  so  far,  that  it  therefore  may  go 
farther  and  render  final  judgment  against  the  unnotified 
debtor,  seems  unwarrantable,  illogical,  and  repulsive  to  the 
instinct  of  justice.^ 

YII.  Loss  OF  Custody. 

§  593.  General  rule. —  It  is  so  well  settled  that  there  can  be 
no  valid  judgment  against  property  when  it  is  not  in  court, 
and  so  many  authorities  have  been  cited  elsewhere  in  this 
treatise  upon  this  point,  that  it  is  unnecessary  to  repeat  them 
here  to  sustain  the  proposition. 

It  is  axiomatic  that  a  thing  cannot  be  in  two  courts  at  the 
same  time.  It  cannot  be  even  constructively  in  both.  It  fol- 
lows that  if  one  court  is  divested  by  another  of  the  possession 
and  control  of  the  res  against  which  a  proceeding  is  pending, 
it  cannot  afterwards  pronounce  a  decree  against  the  property. 
This  is  true  with  respect  to  all  proceedings  in  7'em,  including 
those  limited  to  the  interest  of  the  debtor  owner. 

§  594.  J^xceptionctl  case.—  Attention  should  be  called,  how- 
ever, to  an  exceptional  case.  When  a  state  court  had  been 
divested  of  property  attached,  by  a  United  States  court  which 
seized  the  property  as  forfeited  to  the  government  because  of 
its  enemy  character,  it  nevertheless  proceeded  to  render  judg- 
ment sustaining  the  attachment.  No  notice  had  been  given 
to  the  attachment  debtor  except  by  newspaper  publication, 

1  In  Paine  v.  Mooreland,  15  Ohio,  even    though   the   statute    required 

435,  the  court  inferred,  from  the  fact  notice ;  that  the  court  derived  juris- 

that  there  was  authority  to  sell  per-  diction  by  means  of  its  own  process, 

ishable  property,  that  jurisdiction  to  so    that    the    defendant    could    be 

hear  r.nd  determine  the  case  existed  ;  divested  of  ownership   without  his 

that  if  the  court  could  lawfully  order  opportunity  of  enjojiug  his  day  in 

such  sale,  it  could  render  final  judg-  court,  aud  the  purchaser  at  the  sale 

ment  against    the    defendant   with  invested   with  a  good   title :  all  of 

privilege  on   the  property,  without  which  seems  untenable  and  averse  to 

his  appearance,  without  service  upon  the  spirit  of  the  law  of  attachment 

hiui,  aud  witiiout  publication  notice,  and  to  the  governing  statute. 


416  PEOPEETY    IN    COUET.  [§  595. 

and  he  had  made  no  appearance.  Neither  property  nor  a 
personal  defendant  was  in  court. 

The  federal  case  not  resulting  in  a  decree  of  confiscation, 
the  state  court  regained  the  property  by  a  writ  of  possession 
after  judgment  and  sold  it  under  execution  in  behalf  of  the 
attachment  creditor.  The  supreme  court  of  the  United  States, 
in  sustaining  the  title  of  the  purchaser  under  that  sale,  re- 
marked :  "  If  the  United  States  authorities  had  the  right  to 
seize  the  property  and  take  it  out  of  the  hands  of  the  law,  as 
a  preliminary  step  to  proceedings  for  confiscation,  it  would 
nevertheless  seem  to  be  the  right  of  the  chancery  court  to  re- 
assume  possession  when  the  confiscation  proceedings  failed 
and  came  to  an  end."  ^ 

§  595.  Tlie  real  question. —  The  question  is  not  whether  the 
state  court  in  which  the  attachment  proceedings  were  had  (a 
chancery  court  of  Tennessee)  could  have  regained  possession 
after  having  been  divested  and  then  could  have  proceeded  to 
give  judgment  in  favor  of  the  attaching  creditor,  but  whether 
such  judgment  could  be  rendered  lefore  regaining  possession. 
The  supreme  court  seemed  to  concede  that  possession  had 
been  lost:  under  such  concession  could  there  have  been  a  valid 
attachment  judgment  with  the  res  and  its  owner  both  out  of 
court?     If  not,  could  the  purchaser's  title  be  good? 

Whether  the  legal  possession  did  not  remain  all  the  while  in 
the  state  chancery  court  was  not  suggested.  The  attaching 
creditor  himself  invervened  in  the  confiscation  proceedings  of 
the  federal  court  and  set  up  his  attachmet  lien.  If  the  lien- 
bearing  property  was  there  then,  it  certainly  was  not  also  in 
the  other  tribunal  constructively  or  otherwise.  If  not,  the 
writ  of  possession  should  have  been  issued  and  executed  be- 
fore the  rendition  of  the  attachment  judgment.  The  matter 
resolves  itself  into  a  question  of  jurisdiction. 

1  Ludlow  V.  Eamsey,  11  WalJ.  581,  590. 


CHAPTER  XVI. 

JURISDICTION. 

I.  Degrees  of  Authority  at  Different  Stages  of  the 

Suit §§  596-605 

II.  Jurisdiction  Over  the  Debtor 606-614 

III.  Jurisdiction  Over  the  Debtor's  Property  ....       615-624 

IV.  Statutory  Requisites  Jurisdictional 625-634 

V.  The  Court's  Authority  Special 635-643 

VI.  Territorial  Limits 644-653 

VII.  Jurisdiction  in  Garnishment 654 

I.  Degrees  of  Authority  at  Different  Stages  of  the  Suit. 

§  59G.  Successive  steps. —  A  court  has  authority  to  entertain 
applications  for  attachments  when  it  is  legally  constituted  and 
clothed  with  civil  powers  as  a  court  of  law  to  try  attachment 
suits. 

It  has  authority  to  grant  them  when  the  petitions  and  affi- 
davits show  the  contemplated  suits  to  be  within  the  court's 
limits  with  respect  to  the  amount  involved,  the  territorial 
bounds,  the  property  to  be  attached,  etc.,  and  within  statute 
provisions. 

It  has  authority  to  hold  attached  property  for  further  pro- 
cedure, though  there  has  been  no  defendant  served  or  notified 
by  publication ;  and  even  to  sell  perishable  personal  property, 
before  any  return  to  summons  issued  or  to  publication  ordered. 

It  has  authority  to  try  the  personal  case,  when  the  defend- 
ant has  been  summoned  or  has  appeared,  though  no  property 
has  been  attached. 

It  has  authority  to  try  the  case  against  the  property  when 
it  has  been  attached,  and  the  debtor  notified  by  publication 
but  not  summoned. 

It  has  authority  to  try  the  case  against  both  the  defendant 
and  the  property  when  both  are  in  court;  that  is,  when  the 
defendant  has  been  served  or  has  appeared,  and  property  of 
his  has  been  attached  and  held. 
27 


418  juKisDicTioN.  [§§  59T-599. 

Wherever  the  word  "  authority "  occurs  in  the  foregoing 
paragraphs  jurisdiction  may  be  substituted.  It  will  be  seen 
that  the  word  is  employed  in  several  different  senses,^ 

§  597.  Different  meanings. —  Jurisdiction  is  a  term  of  many 
significations.  Substituting  it  for  "authority"  in  the  sen- 
tences above,  it  may  be  said  that  the  court  has  jurisdiction 
to  entertain  an  application  for  a  writ  of  attachment  and  to 
grant  or  refuse  it;  jurisdiction  to  keep  attached  property  in 
custody  and  even  to  convert  it  by  sale  before  trial;  jurisdic- 
tion to  try  the  cause  against  the  debtor  though  not  his  prop- 
erty; or  against  it  and  not  him;  or  against  both.  Besides, 
the  term  has  other  significations.  We  are  accustomed  to 
speak  of  admiralty  jurisdiction  or  equity  jurisdiction  as  dis- 
tinguished from  that  of  courts  at  law ;  of  probate  and  criminal 
jurisdiction;  of  original  and  appellate  jurisdiction;  of  limited 
and  general  jurisdiction;  of  the  territorial  jurisdiction  of  a 
court,  speaking  in  a  general  way,  without  reference  to  any 
particular  pending  cause  to  be  heard  and  determined;  of  the 
federal  jurisdiction  and  that  of  the  states,  and  the  jurisdiction 
of  other  nations  —  using  the  term  without  any  special  refer- 
ence to  judicial  authority  in  the  last  two  illustrations. 

§  598.  At  the  first  stage  of  an  attachment  proceeding  it  is 
necessary  to  the  magistrate's  right  to  receive  an  application 
that  he  be  legally  empowered  to  take  cognizance  of  it.  The 
statutes  confer  this  jurisdiction  on  civil  courts  specified  therein, 
often  limiting  them  to  certain  amounts,  confining  them  to 
specified  causes  of  action  and  to  certain  grounds  for  attach- 
ment, etc. 

When  the  application,  comprised  in  the  petition  and  affi- 
davit with  the  accompanying  bond,  is  in  accordance  with  law, 
the  court  has  jurisdiction  to  grant  it  by  issuing  a  summons  to 
the  defendant  and  a  writ  for  the  attachment  of  his  property. 

§  599.  Court's  action. —  At  both  these  stages  the  court  usu- 
ally acts  through  its  minister,  the  clerk;  so  that  the  reception 

1  Jurisdiction  is  a  thing  of  degrees.  84  id.  615;  Mogarrieta  v.   Saenz,  80 

Ehode  Island,  etc.  Co.  v.  Keeney,  1  id.  G58;   Taylor  v.  Froncoso,  76  id. 

N.  D.  411.    Summons  or  publication  599;  Millar  v.  Babcock,  29  Mich.  526 ; 

within  statute  time  is  necessary  to  Steere  v.    Vanderberg,    67    id.    530; 

preserve  the  degree  of  jurisdiction  Bacher  v.  Morris  (Minn.),  33  N.  W. 

already  acquired.     Id. ;   Gribbon  v.  560. 
Freel,  93  N.  Y.  93 ;  Blossom  v.  Estes, 


^§  GOO,  GOl.]       AUTHORITY    AT    DIFFERENT    STAGES    OF    SUIT.  419 

of  the  application  and  the  issuance  of  the  writ  and  summons 
are  ministerial  acts.  The  clerk  is  the  court's  right  hand  for 
such  purposes.  Where  statutes  provide  that  the  writ  and  sum- 
mons shall  be  issued  by  the  clerk,  the  authorization  is  made 
with  reference  to  his  relation  to  the  court,  and  the  acts  are 
none  the  less  judicial.  Statutes  never  authorize  any  officer 
who  has  not  such  relation  to  the  court  to  perform  ministe- 
rially such  judicial  functions.  The  issuance  of  attachments 
upon  proper  showing  is  such  a  matter  of  course  that  the  clerk 
is  legally  presumed  to  have  the  court's  direction  whenever  he 
takes  the  affidavit,  files  the  papers,  and  prepares  and  signs 
the  writ  and  summons.  Should  he  issue  an  attachment  wdien. 
no  statute  authority  exists,  it  would  be  said  that  the  court 
had  no  jurisdiction  —  not  that  the  clerk  had  none. 

§  600.  Jurisdiction  as  to  the  (l(ibt. —  A  court  which  has  no 
right  to  investigate  the  question  whether  a  debt  exists  can- 
not take  jurisdiction  of  a  suit  to  establish  a  lien  founded  on 
such  debt.^  It  must  ascertain  that  it  has  a  right  to  proceed, 
before  proceeding  in  any  cause.^  Though  it  has  general  juris- 
diction, it  cannot  take  steps  towards  establishing  an  attach- 
ment lien  unless  the  statutory  grounds  have  been  laid.  It 
may  have  acquired  jurisdiction  over  the  defendant,  yet  not 
have  it  over  his  property  for  want  of  the  laying  of  the  re- 
quired grounds.  If  a  creditor  files  a  legal  petition  and  an 
illegal  affidavit,  and  the  defendant  is  summoned,  appears  and 
joins  issue,  the  court  has  jurisdiction  to  try  the  personal  case 
but  none  to  try  the  ancillar\'  attachment  proceeding. 

§  601.  As  to  the  remedy. —  On  the  other  hand,  if  the  attach- 
ment grounds  are  well  laid,  yet  no  petition  or  declaration  or 
complaint  is  filed,  there  is  no  suit  of  which  the  court  can  take 
cognizance.  The  court  is  competent  to  entertain  a  suit,  but 
it  cannot  go  on  to  hear  and  determine  the  matter  of  the  at- 
tachment when  there  is  nothing  really  before  it.  If  both  pe- 
tition and  affidavit  have  been  filed,  and  bond,  if  required,  then 
the  power  of  the  court  is  limited  to  the  issue  of  the  process, 
until  there  shall  have  been  a  return  made  by  the  officer 
charged  with  it. 

iGay  V.  Eaton,  27  La.  Ann.  166;        -' Phillips  r.  Welsh,  11  Nev.  187. 
Delmas  v,  Morrison.  61  Miss.  314. 


420  juKisDicTioN.  [§§  G02-604 

§  602.  When  the  executive  officer  has  returned  the  writ  of 
attachment  executed  by  the  seizure  of  defendant's  property 
within  the  court's  territorial  bounds,  the  court  becomes  judi- 
cially possessed  of  the  property,  but  not  of  magisterial  author- 
ity over  the  person  of  the  defendant,  if  no  summons  has  been 
issued  or  served.  The  court  has  jurisdiction.  But  what  is 
meant  by  the  term?  It  is  somewhat  vague  and  misleading 
to  say,  without  further  qualification,  that  the  court  has  juris- 
diction. It  has,  of  the  subject-matter,  and  of  the  property  to 
a  limited  degree.  It  has  such  jurisdiction  over  the  property 
as  to  prevent  any  other  court's  interference.  Lord  Ellen- 
borough  said :  "  It  appears  to  me  not  to  be  contradictory  to 
any  cases  or  principles  of  law,  and  to  be  mainly  conducive  to 
public  convenience  and  to  the  prevention  of  fraud  and  vexa- 
tious delay  in  matters,  to  hold  that  when-  there  are  several 
authorities  equally  competent  to  bind  the  goods  of  a  party^ 
the  first  court  attaching  rules."  ^  In  other  words,  one  court 
cannot  disturb  the  lawful  possession  of  another  court  which 
has  had  propert}^  attached.- 

§  603.  The  authority  of  the  court,  at  this  stage,  is  confined 
to  the  custody  of  the  property,  its  detention  and  preservation, 
its  conversion  from  a  perishable  condition  to  its  money  equiva- 
lent when  necessary,  and  to  the  issuance  of  all  orders  required 
to  effect  these  purposes  a.nd  bring  the  defendant  into  court 
by  service;  or,  on  failure  thereof,  to  notify  him  by  publica- 
tion. 

The  foundation  for  power  to  hear  and  determine  the  cause 
is  laid  by  the  attachment,  but  the  superstructure  is  not  thus 
raised.  The  sine  qua  non  of  the  suit  against  the  property  is 
the  seizure,  but  that  alone  confers  no  authority  to  tr}'-  the 
cause.  It  is  therefore  not  true,  in  an  unqualified  sense,  that 
seizure  alone  gives  jurisdiction  in  an  attachment  suit,  if  the 
term  jiirudiction  is  used  as  usually  defined:  power  to  try  the 
cause. 

§  604.  When  summons  has  been  returned,  showing  that  the 
defendant  has  not  been  found,  then  the  court  has  power  to 

1  Payne  v.  Drew,  4  East,  523.  moval  of  several    pending    attach- 

2  Corning  v.  Dreyfus,  20  Fed.  426.  ment  cases  to  one  court  can  be 
There  must  have  been  a  levy,  so  as  ordered.  Howe  v.  Stevenson,  84  Ky. 
to  give  jurisdiction,  before  the  re-  576. 


§§  G05,  606.]  JURISDICTION    OVER   DEBTOR.  421 

order  publication  according  to  the  statute  under  which  the 
suit  has  thus  far  progressed.  When  the  suit  is  against  an 
absent  non-resident,  publication  may  be  ordered  at  once.  The 
issuing  of  the  order,  and  the  beginning  of  the  publication  of 
the  notice  pursuant  thereto,  give  the  court  no  further  exten- 
sion of  jurisdiction  over  the  property  attached,  and  none 
whatever  over  the  person  of  the  defendant.  The  full  publica- 
tion and  proof  of  it  by  the  sheriff's  return  complete  the  power 
of  the  court  to  hear  and  determine  the  cause,  so  far  as  the 
property  is  concerned.^ 

§  60.5.  Jurisdiction,  in  the  sense  of  power  to  hear  and  de- 
termine an  attachment  suit  both  against  the  propert}'  attached 
find  the  defendant  personally,  iS  not  in  the  court  specially  au- 
thorized by  statute  until  the  defendant  has  appeared  or  has 
been  served  and  his  property  has  been  attached ;  but  if  there 
has  been  publication,  there  is  jurisdiction  to  the  amount  of 
the  property  attached.  The  presence  of  the  defendant,  or  of 
something  attached,  is  necessary.- 

The  authorit}^  advances  by  successive  steps;  and  it  is  mis- 
leading to  speak  of  jurisdiction  without  bearing  in  mind  the 
meaning  properly  attached  to  the  term  in  any  connection  in 
which  it  is  used. 

II.  Jurisdiction  Over  the  Debtor. 

§  606.  Service  and  aiypearance. —  Only  by  service  or  appear- 
ance is  the  debtor  a  party.  There  is  no  substitute  for  serv- 
ice unless  he  has  previously  consented  to  it.'  After  appear- 
ance he  continues  a  party  though  he  withdraw  it.* 

There  can  be  no  waiver  of  essentials  to  give  jurisdiction.' 

1  Jurisdiction  of  the  property  but  ^  Vallee    v.    Dumer2;ne.    4  Exch. 

not  of    the    person.     Central    City  290;  Lafayette  Ins.   Co.  v.  French, 

Bank  v.  Parent,  134  N.  Y.  527;  Mc-  18  How.  401;  Gillispie  v.   Commer- 

Kinley  v.  Collins,  88  id.   216;  Bart-  cial,  etc.  Ins.  Co.,  12  Gray,  201. 

lett  V.  Spicer,  75  id.  528;  Bartlett  v.  *  Creighton  v.  Kerr,  1  Colo.  509. 

McNeil,    60    id.    53 ;    Schwinger  v.  5  Goodyear  Rubber  Co.  v.  Knapp, 

Hickok,  53  id.  280;  Backus  v.  Kim-  61  Wis.  103;  Kahn  v.  Angus,  61  id. 

ball,  62  Hun,  122;  Cromwell  v.  Gal-  264;  Butler  v.  Wagner,  35  id.    54; 

lup,  17  id.  49 ;  Anderson  v.  Goflf,  72  Landon  r.  Burke,   33  id.    4r)2,    458 ; 

Cal.  65.  Jarvis  v.  Barrett,  14  id.  591 ;  Murphy 

2 Straus  V.  Chicago  Glycerine  Co.,  v.  Montaudon,  2  Idaho,  1048. 
46  Hun,  216. 


422  juKiSDicTioN.  [§§  607,  608. 

But  "  when  the  court  has  jurisdiction  of  the  subject-matter, 
the  consent  of  the  defendant  can  give  jurisdiction  over  his 
person  in  a  particular  pending  action;  and  this  consent  may 
be  made  by  an  appearance  of  record,  or  may  be  inferred  from 
his  pleading  to  the  complaint  filed."  ^  "  General  api  e  irance 
cannot  waive  matters  relating  to  the  jurisdictional  powers  of 
the  court."  ^ 

§  607.  Suhstitution. —  Notice  by  publication  is  no  substitute 
for  service  so  as  to  make  the  notified  absentee  a  party  ;^  for, 
if  it  were,  it  would  render  him  liable  to  personal  judgment 
for  the  debt  beyond  the  value  of  the  property  attached,  and 
for  costs.  The  publication  of  the  summons,  notice  beyond 
the  state  by  letter,  and  like  expedients,  are  ineffectual  to 
make  him  a  party.  All  these  methods  are  important  as 
means  of  tendering  him  his  "day  in  court" — which  is  essen- 
tial to  valid  judgment  against  his  attached  property.  Though 
the  state  itself  has  governmental  jurisdiction  over  property 
within  its  bounds,  its  courts  have  none  till  it  is  brought  be- 
fore them  and  the  owners  notified;  so,  even  though  a  statute 
authorize  judgment  (after  publication)  first,  and  seizure  for 
execution  afterwards,  it  would  be  void,  and  the  judgment 
without  lawful  authority.* 

§  608.  No  exceptions. —  IS"o  exception  to  the  rule,  that  pub- 
lication does  not  bring  the  defendant  into  court,  is  found  in 
divorce  suits  against  unserved  defendants.  The  proceeding 
for  divorce  is  to  declare  the  status  of  the  applicant,  who  must 

1  Lackett  v.   Rumbaugh,    45  Fed.  Stephenson,    10   la.    493;  Cooper  v. 

31,  citing  Greer  v.  Cagle,  84  N.  C.  Smith,  25  id.   269;  Morris  v.  Union 

385;  Raih-oad  Co.   v.   Ketchum,  101  Pacific  R.  R.  Co.,  56  id.   135;  Bruce 

U.  S.  289.  V.  Cloutman,  45  N.   H.  37;  Carleton 

•-ild. ;  Houston  v.  Porter,  10  Ired.  v.  Wash.  Ins.  Co.,  35  id.  162;  Eaton 

174;  Creighton    v.    Kehr,   98  U.   S.  v.  Badger,  33  id.  228;  Repine  r.  Mc- 

476;  Spillman  V.  Williams,  91  N.  C.  Pherson,    2    Kan.    340;    Abbott   v. 

483;  Rogers  V.  Jenkins,  98  id.    129;  Sheppard,    44    Mo,    273;    Smith    v.' 

Tolandv.  Sprague,  12  Pet.  300.  McCutcheon,   38  id.    415;   Miller  v. 

3  Hart  V.  Sansom,   110  U.  S.  151-  Sharp,  3  Randolph  (Va.),  41  ;Hopkirk 

155.  V.  Bridges,  4  Hen.   &  M.  (Va.),  413; 

4Pennoyer  v.   Neff,   95  U.  S.  714;  Austin  v.  Bodley,  4  Mon.  (Ky.)434; 

Phelps  V.  Baker,  60  Barb.  107;  Bor-  Maude  v.  Rhodes,  4  Dana(Ky.),  144; 

ders  V.  Murphy,  78  III.  81 ;  Clymore  Hunt  v.  Johnson,   Freeman  (Miss,), 

V.  Williams,  77  id.  618 ;  Johnson  v.  282 ;  Ward    v.    McKenzie,    33    Tex. 

Johnson,    26    Ind.    441;    Judah    v.  297. 


§§  609-611.]  JURISDICTION    OVEU    DEBTOR.  423 

be  within  the  jurisdiction,  though  the  other  person  to  be  af- 
fected by  the  order  need  not  be  within  it  —  contrary  to  the 
rule  in  ordinary  personal  suits,  but  consonant  with  that  of 
other  proceedings  to  fix  personal  status:  such  as  a  minor  pray- 
ing to  be  emancipated;  a  testamentary  executor  praying  to 
be  recognized  as  such;  an  insolvent  to  be  adjudged  a  bank- 
rupt; a  demented  person  (by  a  friend)  praying  to  be  declared 
a  lunatic,  etc. 

§  609.  The  divorce  suit,  like  the  proceedings  just  mentioned, 
is  in  personam,  qioasi  in  7'ein.  It  is  as  if  in  rem  in  the  con- 
clusiveness of  the  decree  as  to  all  persons,  including  the  non- 
resident and  unserved  person  from  whom  the  applicant  is 
divorced.  It  is  really  a  personal  proceeding,  not  merely  be- 
cause it  is  such  in  form,  but  because  it  is  to  declare  personal 
status,  while  no  property  or  thing  is  proceeded  against  as  the 
res  of  an  action.  The  fact  that  the  decree  is  always  nomi- 
nally against  a  defendant  does  not  show  that  he  is  a  party  in 
court;  for,  if  so,  there  could  be  judgment  against  him  for 
alimony  and  costs:  it  is  well  settled  that  such  judgment  can- 
not be  rendered  when  he  has  been  merely  notified  by  publi- 
cation and  has  not  responded.^ 

§  610.  Nor  is  there  any  exception  to  the  rule  (that  publica- 
tion cannot  make  the  defendant  a  party)  to  be  drawn  from 
cases  in  which  the  debt  sued  upon  is  greater  than  the  value 
of  the  property  attached,  and  yet  judgment  is  nommally 
rendered  for  the  whole  claim.  Such  cases  have  been  adduced 
to  sustain  statutes  authorizing  judgment  without  service  when, 
the  absent  debtor  has  property  wnthin  the  state  upon  which 
the  judgment  may  be  executed  —  the  futility  of  which  was 
shown  in  the  last  page.'^  But  when  the  judgment  for  the  debt 
in  an  attachment  case  (in  which  the  debtor  has  been  merely 
notified  by  publication)  exceeds  the  value  of  the  attached 
property,  it  is  good  up  to  that  value  only ;  beyond  it  the 
judgment  is  inoperative:  so  this  is  no  exception  to  the  gen- 
eral rule, 

§  611.  Nominal  attaclimenis. —  Formerly  there  was  in  some 
places  the  practice  of  attaching  an  article  of  the  defendant's 
property,  however  small,  even  a  chip,  for  the  purpose  of  bring- 
ing himself  into  court  through  his  property.     He  was  deemed 

'§§10,11.  2§607,  n.  4. 


424  JURISDICTION.  [§§  612,  613. 

to  be  personally  in  court  for  all  purposes  when  some  insignifi- 
cant article  was  attached.  The  proceeding  thereafter  went 
on,  not  against  such  article,  but  as  a  personal  suit. 

Such  a  proceeding  by  nominal  attachment  is  not  a  personal 
suit  in  efifect;^  and  the  mere  nominal  attachment  of  an  insig- 
nificant article  can  give  no  personal  jurisdiction.'- 

§  612.  This  usage  has  not  come  into  practice  under  any  of 
the  present  existing  statutory  authorizations  of  the  several 
states.  Those  who  think  the  defendant  is  reached  by  the  at- 
tachment of  property  supposed  to  be  sufficient  in  value  to 
satisfy  the  creditor's  claim  have  really  no  better  reason  for 
their  theory  than  had  the  advocates  of  the  antiquated  usage 
above  mentioned.  Sometimes  we  still  see  the  doctrine  ad- 
vanced that  the  defendant  is  brought  into  court  by  the  bring- 
ing in  of  his  property;  and  wherever  this  crops  out  in  an 
opinion  it  is  almost  always  attributable  to  the  old  usage. 

§  613.  Debtor  not  in  court  hy  Ms  property. —  The  reader  will 
encounter  several  decisions  in  which  it  is  said  that  publication 
notice  following  the  attachment  of  property  is  a  substitute 
for  service,  and  that  it  brings  the  defendant  personall}^  into 
court;  but  he  will  notice  that  nearly  all  of  such  decisions 

1  Where,  under  the  laws  of  some  satisfied  only  out  of  the  property  at- 

of  the  states,  an  attachment  is  the  tached.     Rowley  v.  Berrian    12  III. 

first  process,  and  that  being  levied  on  198,  202,  citing  Henrie  v.  Sweazy,  5 

any  article    of    property,    however  Blackford  (111.),  273.     Reaffirmed  in 

small,  gives  jurisdiction  to  the  court,  Hobson  v.  Emporium  Real  Estate  and 

a   judgment  is  obtained,  it  is  only  Manuf.  Co.,  42  111.  306. 
considered  as  a  proceeding  in  rem.        2"Xhe   nominal   attachment  of  a 

Such  a  proceeding  binds  the  pi'op-  chip,  a  stick  or  a  hat "  not  sufficient 

erty    attached ;    but    beyond     that  to  authorize  the  court   to  render  a 

the  defendant  is  not  bound."    West-  valid   judgment  against  an  absent 

erwelt  v.  Lewis  &  Tookei',  2  McLean,  debtor     notified      by      publication. 

511,    514.      It   would   not   bind   the  Carleton  v.  Washington  Ins.  Co.,  35 

pi-operty  attached  as  the  res,  without  N.  H.  162,168.     The  judgment  can 

notification  of  some  sox't  to  its  owner,  bear    only    on    what    is    attached. 

"The    proceeding    by    attachment  Webster u.  Reid,  11  How.  437;  Clark 

is  in  derogation  of  the  common  law,  v.  Halliday,  9  Mo.  711 ;  Steel  v.  Smith, 

and  in  the  nature  of  a  proceeding  in  7  Watts  &  S.  447 ;  Oakley  v.  Aspin- 

rem,"  and  plaintiff  can  recover  only  wall,  4   Comstock,   511;    Wilson  v. 

the  amount  set  forth  in  his  affidavit,  Spring,  38  Ark.    181;  Thompson  v. 

with  interest   and  costs,  if  the  de-  Eramert,  4  McLean,  96 ;  Robinson  r. 

fendant  is  not  served  and  does  not  Ward,    8  Johns.    86;    Earthman   r. 

appear;   and   the  judgment  can  be  Jones,  2  Yerg.  484. 


C13.] 


JURISDICTION    OVKK    DETITOR. 


425 


further  say  that  in  cases  of  published  notification  there  can 
be  no  personal  judgments,  and  tliat  tlie  decrees  must  be  con- 
fined to  the  property  attached:^  thus  the  antidote  accom- 
panies the  poison. 

Why  must  the  decrees  be  confined  to  the  property  attached? 
Why  must  a  plaintiff,  whose  suit  is  personal  in  form,  and  who 
has  established  a  credit  due  him  in  a  sum  quadruple  that  of 
the  value  of  the  property  attached,  be  limited  to  the  execu- 
tion of  that  particular  thing?  Wh}'^  may  he  not,  after  vindi- 
cating his  lien  upon  the  res  by  the  sale,  proceed  to  execute 
other  property  of  the  defendant  to  make  the  other  three- 


1  In  illustration,  take  King  v. 
Vance,  46  Ind.  246,  which  has  often 
been  cited,  without  challenge,  to  sus- 
tain the  position  that  publication 
brings  the  attachment  debtor  into 
court.  There  is  a  single  sentence  in 
that  decision  (introduced  by  way  of 
argument  in  the  discussion  of  the 
point  whether  the  payee  of  a  note 
may  be  garnished  before  the  note  is 
due)  in  which  the  court  said: 
"Where  the  defendant  in  attach- 
ment is  a  foreign  corporation  or  a 
non-resident  of  the  state,  he  may  be 
brought  in  by  publication ;  and  when 
thus  notified,  a  defendant  is  before 
the  court  for  all  purposes  except  the 
rendition  of  a  personal  judgment." 
The  exception  completely  neutralizes 
the  proposition;  for  if  no  personal 
judgment  can  be  rendered,  for  what 
possible  purpose  can  the  defendant 
be  personally  in  court?  And  if  in 
court,  what  reason  can  be  imagined 
why  judgment  may  not  be  rendered 
against  him,  as  a  party,  on  evidence 
sufficient?  The  ipse  dixit  (more  prom- 
inent in  the  syllabus  than  in  the  text) 
is  unsupported  by  any  citation  of  au- 
tliority.  Perhaps  no  one  more  than 
its  author  has  been  surprised  at  the 
large  figure  it  has  made  as  an  author- 
ily  to  show  that  publication  brings 
an  attachment  defendant  into  court 
for  all  purposes — the  exception  be- 


ing frequently  left  out  of  sight.  The 
court  confined  the  remark  to  foreign 
attachments,  yet  it  has  been  indis- 
criminately applied  to  attachments 
in  general.  Another  illustration  may 
be  found  in  Bruce  v.  Stewart,  3  Wis. 
773,  777.  The  lower  court  had  dis- 
missed the  attachment  because  the 
publication  made  was  deemed  insuf- 
ficient to  confer  jurisdiction.  The 
supreme  court  said  that  the  object 
of  the  publication  as  required  by  the 
statute  "is  not  to  give  the  court  ju- 
risdiction of  the  writ  and  subject- 
matter  of  the  suit,  but  to  inform  the 
defendant,  if  possible,  that  proceed- 
ings have  been  taken  against  him 
and  give  him  an  opportunity  to 
defend."  The  implication  that  there 
would  have  been  jurisdiction  over 
the  attached  property  without  publi- 
cation is  cured  by  the  concluding 
statement  that  the  object  of  the 
notice  was  to  inform  the  defendant 
and  afford  him  opportunity  to  de- 
fend ;  for  it  cannot  be  conceived  that 
a  just  judge  could  condemn  prop- 
erty absolutely  (not  merely  nisi,  etc.), 
without  such  opportunity  being  af- 
foi'ded.  Later  the  court  added  that 
the  defendant  subsequently  made 
personal  appearance,  "  was  in  court, 
and  jurisdiction  was  therebij  ac- 
quired of  his  person." 


426  JURISDICTION.  [§§  61-1,  615. 

fourths  of  his  claim?  Manifestly  because  he  has  no  judg- 
ment good  against  the  unsummoned  and  non-appearing  de- 
fendant, but  only  against  the  thing  attached  and  incidentally 
against  its  owner  to  the  amount  of  its  value.  The  courts 
virtually  say  that  the  defendant  is  not  brought  personally 
into  court  by  seizure  and  publication  when  they  express  the 
equivalent  idea  that  the  judgment  is  only  good  against  the 
attached  property.^ 

§  614.  It  has  been  held  that  a  non-resident  may  appear 
specially  by  attorney  and  move  to  strike  out  a  judgment  ren- 
dered in  an  ancillary  proceeding  and  to  quash  execution,  with- 
out being  within  the  jurisdiction  of  the  court  in  respect  to  the 
action  of  assumpsit  brought  at  the  same  time  against  him  per- 
sonally, wherein  a  summons  was  issued  and  returned  non  est? 
He  has  been  allowed  to  appear  as  amicus  curia  and  success- 
fully move  that  an  attachment  against  his  property  be  dis- 
solved and  the  case  dismissed.^ ' 

III.  Jurisdiction  Over  the  Debtor's  Property. 

§615.  Seizure  andJioIcUng. —  The  lawful  seizure  and  con- 
tinued detention  of  the  debtor's  property  are  essential  to  juris- 
diction over  it.     It  may  be  held  by  the  defendant  under  a 

1  Maxwell  u  Stewart,  22  Wall.  77 ;  203;  Henry  v.   Sweazy,    5  Blatchf. 

Casey  V.  Adams,  102  U.  S.  66;  Har-  273;  Massey  v.    Scott,  49  Mo.  278; 

ris  V.  Hardeman,  14  How.  334;  Force  Chamberlain    v.    Faris,    1    id.    517; 

V.  Gower,   23  How.  Pr.  294;  People  Myers  v.  Farrell,  47  Miss.  281;  Bates 

V.  Baker,  76  N.  Y.  87 ;  Robinson  v.  v.  Crow,  57  id.  676,  678 ;  Lincoln  r. 

National  Bank,  81   id.  391;  McKin-  Tower,  2  McLean,  473;  Westerwelt 

ney   v.  Collins,  88   id.  216;  Fitzsim-  v.    Lewis    &  Tooker,    id.    511,   514; 

mons   V.  Marks,  66   Barb.  333;  Kil-  Pancoast   v.  Washington,   5   Cr.  (C. 

burn   V.   Wood  worth,    5  Johns.  37;  C.)507;  Fisher  v.  Lane,  3  Wils.  297; 

Borden  V.  Fitch,  15  id.  121;  Downer  Shirley    v.    Byrnes,    34    Tex.    625; 

V.  Shaw,  2  Fos.  277 ;  Wilkie  v.  Jones,  Green  v.   Hill,  4   id.  465 ;  Myers  v. 

1  Morr.   (Iowa),   97 ;  Coleman's  Ap-  Smith,    29   Ohio   St.    125 ;    Egan  v. 

peal,  75  Pa.  St.  441 ;  Phelps  v.  Hoi-  Lumsden,  2  Dis.  (Ohio),  168. 
ker,  1  Ball.  (Pa.)  261 ;  Fitch  v.  Ross,        2  Potomac  Steamboat  Co.  v.  Clyde, 

4Serg.  &R.  557;  Miller  v.  Dungan,  51    Md.  174.     See   Harris  v.  Harde- 

36  N.  J.  L.  21 ;  Bower   r.  Town,  12  man,  14  How.  343. 
Mich.   233;  Clymer  v.  Williams",  77        3  ^-^cpaj-^e  Railroad  Co.,  103  U.  S. 

111.  618;  Hobson  v.  Emporium  Real  794;    Des    Moines    &    Minn.   R.    R. 

Estate  &  Manufacturing  Co.,  42  id.  Co.    v.    Alley  (same  case),  id.     See 

30G;  Rowley   v.  Berrian,  12   id.  198,  Nazoo  v.  Cragin,  3  Dill,  474;  Toland 


§  61G.]  JURISDICTION    OVER    DEBTOR'S    PROPERTY.  427 

forthcoming  bond;  it  may  be  intrusted  to  others,  under  such 
bond,  pursuant  to  statutory  authorizations,  but  the  court's  con- 
trol and  legal  possession  must  be  maintained  till  judgment, 
or  the  lien  will  fall,  and  the  suit  be  ended  so  far  as  concerns 
the  attachment. 

If,  before  judgment,  the  attached  property  should  be  de- 
stroyed by  fire  or  otherwise,  lost,  wasted,  stolen,  delivered  un- 
conditionally to  the  defendant,  to  a  claimant  or  to  a  stranger; 
should  be  taken  irrecoverably  out  of  the  jurisdiction,  or  should 
be  in  any  way  put  beyond  the  legal  possession  and  control  of 
the  court,  so  that  it  could  not  be  subjected  to  execution  after 
judgment,  the  whole  purpose  of  the  plaintiff  in  attaching 
would  be  defeated. 

Nothing  is  better  settled  than  that  the  possession,  actual  or 
constructive,  must  be  maintained,  and  the  court's  control  of  it 
preserved ;  and  that  this  is  essential  to  the  attachment  lien  and 
the  jurisdiction  over  attached  property.^ 

§  616.  Seizure  not  statutory  notice. —  If  any  apology  be 
necessary  for  proceeding  now  to  show  that  seizure  does  not 
obviate  the  necessity  for  notice,  perhaps  it  may  be  found  in 
the  fact  that  there  are  those  who  hold  the  affirmative.^ 

V.  Sprague,  12  Pet.  300;  Dormitzer  v.  Stevens,  19  id.  92;  Chadbourne  u. 
V.  Illinois  &  St.  Louis  Bridge  Co.,  11  Sumner,  16  N.  H.  129;  Dunklee  v. 
Law  Rep.  672.  Fales,  5  id.  527 ;  Becker  v.  Bailies,  44 
iBoyntonr.  Warren,  99  Mass.  172;  Ct.  167;  Taintor  r.  Williams,  7  id. 
Baldwin  v.  Jackson,  12  id.  131;  Cut-  271 ;  Sanford  v.  Boring,  l2  Cal.  539; 
ler  V.  Howe,  122  id.  541;  Davis  v.  State  v.  Cornelius,  5  Oreg.  46.  "It 
Stone,  120  id.  288;  Hemmenway  v.  is  a  settled  rule  of  the  law  of  attach- 
Wheeler,  14  Pick.  408;  Walkins  v.  ment  that  in  order  to  maintain  the 
Cawthorn,  33  La,  Ann.  1194;  Scott  lien  created  by  an  attachment  of 
V.  Davis,  26  id.  688 ;  Nelson  v.  Simp-  personal  property  tlie  officer  must, 
son,  9  id.  311:  Butler  v.  White,  25  in  some  form,  b}- himself  or  another, 
Minn.  4o2 ;  Wall  v.  PuUiam,  5  Heisk.  retain  the  custody  of  the  property." 
365 ;  Ferguson  v.  Vance,  3  Lea  Sanderson  v.  Edwards,  16  Pick.  144, 
(Tenn.),  90;  Roberts  v.  Dunn,  71  111.  citing  Carrington  v.  Smith,  8  id.  419. 
46;  Roberts  v.  Carpenter,  53  Vt.  678;  To  the  same  effect.  Bruce  r.  Holden, 
Flanagan  u.  Wood,  33  id.  332;  Mont-  21  Pick.  190;  Bagley  r.  White,  4  id. 
pelier  &  Wells  River  R.  R.  Co.  v.  395;  Lane  v.  Jackson,  5  Mass.  157. 
Coffrin,  52  id.  17;  Fitch  v.  Rogers,  7  The  same  rule  holds  as  to  the  con- 
id.  403;  Charnock  V,  Colfax,  51  la.  structive  possession  of  real  property 
70 ;  Waterhouse  v.  Smith,  22  Me.  337 ;  attached.  Ante,  p.  397. 
Nichols  V.  Patton,  18  id.  231;  Love-  -See  cases  against  non-residents: 
joy  V.  Hutchins,  23  id.  272;  Gower  Moore  u.  Circuit  Judge,  55  Mich.  84 


428 


JURISDICTION. 


r§  61-7. 


Seizure  and  detention  of  the  debtor's  propert}^  are  not  pre- 
sumptive notice  to  him,  under  the  attachment  laws.  It  is  true 
that,  in  actions  in  rem  irrespective  of  persons,  such  as  suits 
upon  forfeiture  to  fix  the  status  of  property  so  as  to  be  con- 
clusive upon  all  the  world,  it  has  been  sometimes  said  that 
seizure  is  notice;  notice  to  the  owner  who  is  presumed  to 
know  when  his  property  is  in  the  adverse  possession  of  an- 
other.^ This  presumption  does  not  obviate  the  necessity  of 
publishing  a  monition  when  required  by  statute.  The  presump- 
tion is  not  invoked  against  an  absent  and  unserved  debtor 
when  the  statute  provides  that  he  shall  be  notified,  in  suits  in 
rem  respective  of  persons.^ 

§  617.  Notice  essential  to  jurisdiction  to  render  judgment. — 
Cooley  says  that  notice  is  essential  to  the  right  to  render 
judgment  in  proceedings  in  rem^  of  general  character,  binding 
upon  all  persons:  ''To  render  the  jurisdiction  of  a  court 
effectual  in  any  case,  it  is  necessary  that  the  thing  in  contro- 


(see  dissent  of  Judge  Campbell,  who 
cites  McClosky  v.  Circuit  Court,  26 
Mich.  100;  Am.  Express  Co.  v. 
Judge  of  Wayne  Co.,  55  Mich.  88); 
Micky  V.  Stratton,  5  Saw.  475 ;  Craig 
V.  Fraser,  73  Ga.  246  (as  to  non-resi- 
dent debtor),  distingiiishing  Mullen 
V.  Smith,  54  id.  575,  as  being  a  suit 
against  a  resident.  See  Ga.  Code, 
g^  3309,  3328,  3671. 

1  Bradstreet  v.  The  Neptune  In- 
sui'ance  Co.,  3  Sumner,  609;  Cross 
V.  United  States,  1  Gall.  28; 
Schooner  Bolina,  id.  79;  HoUings- 
worth  V.  Barbour,  4  Pet.  475 ;  Bos- 
well's  Lessee  v.  Otis,  9  How.  336; 
Nations  v.  Johnson,  24  id.  205 ;  Lane 
V.  Shears,  1  Vv^end.  433;  Scott  v. 
Shearman,  2  Wm.  Black.  977; 
Keating  v.  Spink,  3  Ohio  St.  114; 
Tliompson  v.  Steamboat  Morton,  2 
id.  30;  Stewart  v.  Board,  etc.,  25 
Miss.  479;  New  Orleans,  etc.  v. 
Hemphill,  35  id.  24. 

2Gibbs  V.  Shaw,  17  Wis.  197;  Pope 
V.  Cutler,  34  Mich.  152:  Gillett  v. 
Needham,    37   id.    148;    Sitzman  v. 


Pacquette,  13  Wis.  291;  Corwin 
V.  Merritt,  3  Barb,  341;  Sheldon  v. 
Wright,  5  N.  Y.  518;  Ridgeney  v. 
Coles,  6  Bosw.  486 ;  Sibley  v.  Waffle, 
16  N.  Y.  185;  Bloom  u  Burdick,  1 
Hill,  140 ;  Clark  v.  Holmes.  1  Doug. 
(Mich.)  394;  Palmer  v.  Oakley,  2  id. 
472 ;  Greenvault  v.  F.  &  M.  Bank,  2 
id.  498;  French  v.  Hoyt,  6  N.  H.  370; 
Dakin  v.  Hudson,  6  Cow.  222 ;  Doe 
V.  Anderson,  5  Ind.  34;  Babbit  v. 
Doe,  4  id.  356;  Arnold  v.  Nye,  23 
Mich.  292 ;  Ryder  v.  Flanders,  30  id. 
341 ;  Stark  v.  Brown,  12  Wis.  582 ; 
Sherry  v.  Dean,  8  Blatchf.  542;  Lessee 
of  Adams  V.  Jeffries,  12  Ohio,  253; 
Warner  v.  Webster,  13  id.  505 ;  Mes- 
senger V.  Klinter,  4  Bin.  97 ;  Schnei- 
der V.  McFarland,  2  Comst.  459; 
Bank  v.  Johnson,  7  S.  &  M.'  449;  Ed- 
wards V.  Toomer,  14  id.  75;  Ridley 
V.  Ridley,  24  Miss.  648 ;  Calhoun  v. 
Ware,  34  id.  146;  Martin  v.  Dryden, 
6  111.  187;  King  v.  Harrington,  14 
Mich.  532;  Clark  v.  Bryan,  16  Md. 
171. 


§§  GIS,   019.]        JURISDICTION    OVER    DEBTOR's    PROPERTY.  429 

versy,  or  the  parties  interested,  be  subject  to  the  process  of 
tlie  court.  Certain  cases  are  said  to  be  in  rem  because  they 
take  notice  rather  of  the  thing  in  controversy  than  of  the  per- 
sons concerned ;  and  the  process  is  served  upon  that  which  is 
the  object  of  the  suit,  without  specially  noticing  the  interested 
parties;  while  in  other  cases  the  ])arties  themselves  are  brought 
before  the  court  by  process.  Of  the  first  class,  admiralty  pro- 
ceedings are  an  illustration;  the  court  acquiring  jurisdiction 
by  seizing  the  vessel  or  other  thing  to  which  the  controversy 
relates.  In  cases  within  this  class,  notice  to  all  concerned  is 
required  to  he  given,  either  personally  or  hy  some  species  of  piib- 
lication  or  proclamation ^  and  if  not  given,  the  court  lohich  had 
jurisdicUon  of  the  p>roperty  will  have  none- to  enter  judgment^^ 

It  will  be  observed  that  the  term  "jurisdiction"  is  used  in  a 
limited  sense  when  expressing  the  judicial  power  consequent 
from  seizure,  but  in  its  full  signification  —  power  to  hear  and 
determine  the  cause  —  at  the  close,  where  it  is  said  that  the 
court  "  will  have  none  to  enter  judgment"  unless  notice  has 
been  given. 

§  618.  Admiralty. —  The  class  which  includes  those  admi- 
ralty proceedings  which  are  against  things  and  conclusive  of 
all  persons  also  includes  proceedings  at  law  against  things 
seized  upon  land;  and  the  same  rule  prevails.  The  statutes  of 
the  United  States  contain  many  authorizations,  and  the  reports 
many  illustrations,  of  proceedings  at  law  of  this  character. 
Admiralty  causes  directly  against  property  are  not  peculiar; 
the}'  belong  to  a  class,  as  observed  in  the  quotation  above 
made.  Many  of  the  class  are  upon  liens.  That  is,  they  are 
against  things  indebted  by  legal  fiction. 

§  619.  Were  it  true  that  seizure  alone  gives  jurisdiction  to 
determine  the  cause,  the  summons  of  debtors  present  might 
be  neirlected  as  well  as  the  notification  of  debtors  absent.  In 
general  proceedings  to  conclude  the  world,  no  summons  is 
issued.  If  attachments  were  entirely  analogous,  none  need  be 
issued,  though  it  is  a  limited  proceeding.  But  no  one  con- 
tends that  the  summons  is  rendered  unnecessary  because  seiz- 
ure is  presumptive  notice:  wh}^  then  should  publication  (on 

^Cooley's  Const.  Limitations  (filh  ed.),  pp.  495,  496.  The  italics  are  not 
used  in  his  text. 


430  JURISDICTION.  [§§  620,  621. 

failure  of  service)  be  thought  needless  because  there  is  such 
presumption? 

§  620.  jPerisliable  irroi)erty. —  The  sale  of  perishable  prop- 
erty, by  order  of  court,  before  any  condemnation  of  it,  may  be 
be  made  without  publication  notice  to  an  absent  defendant. 
Such  sale  always  rests  upon  necessity  for  its  justification. 
Ordinarily  there  is  no  necessit}'-  for  such  haste  that  there  must 
be  sale  after  attachment  and  before  publication;  but,  admit- 
ting the  necessity  in  any  case,  the  want  of  notice  to  the  owner 
would  not  render  invalid  the  title  acquired  by  the  purchaser 
at  the  sale.  But  this  forms  no  exception  to  the  general  rule 
that  publication  is  essential  to  the  validity  of  a  judgment  in 
an  attachment  suit  against  the  property  of  a  non-resident  not 
served  with  process.  It  is  not  an  exceptional  judgment  divest- 
ing the  owner  of  his  rights,  for  he  owns  the  proceeds  after  his 
perishable  property  has  been  converted  into  cash.  The  thing 
sold  would  have  perished  had  it  not  been  sold.  The  purchaser 
has  obtained  the  title  which  the  former  owner  had,  but  not  by 
virtue  of  an  attachment  judgment  against  the  property.^ 

§  621-  It  has  been  thought  that  when  property  has  been 
attached  and  brought  into  court,  but  the  debtor  owner  not 
reached,  the  court  has  jurisdiction  over  it  irrespective  of  the 
owner,  because  there  is  power  to  order  its  sale  if  it  is  perish- 
able. It  is  needless  to  say  that  the  court's  right  to  sell  is  for 
the  preservation  of  the  property  by  changing  it  from  its  per- 
ishable condition  to  money  which  remains  in  custody  as  its 
substitute.-  There  is  no  hearing  and  determining  the  ques- 
tion of  the  validity  of  the  plaintiff's  claim,  nor  of  the  liability 
of  the  property  attached.     There  is  no  exercise  of  jurisdiction 

1  Betterton  u.  Epstein,  78  Tex.  443.  or  of  lien-vindication.  This  case  does 
lu  Megee  v.  Beirne,  39  Pa.  St.  50,  62,  not  teach  that  thei'e  may  be  condem- 
it  is  said  that  such  order  and  sale  of  nation  without  notice, 
perishable  property  is  a  proceeding  -'  Franke  v.  Eby,  50  Mo.  App.  579 ; 
in  rem,  and  that  the  purchaser  takes  ante,  %%  588-592.  Should  the  defend- 
title  against  all  persons,  etc.  It  is  a  ant  subsequently  appear  and  gain 
mere  order  for  the  sale  of  property —  his  suit,  he  would  certainly  be  en- 
there  is  no  condemnation  of  it.  No-  titled  to  the  proceeds  of  his  property 
tice  is  necessary  in  any  proceeding  sold  as  perishable  under  an  interloc- 
in  rem  leading  to  a  valid  decree  of  utory  order.  Cross  v,  Elliott,  69  Me. 
condemnation,  whether  of  forfeiture  387. 


§§  622,  G23.]     JURISDICTION  over  debtor's  property.  431 

in  the  sense  in  which  jurisdiction  is  exercised  when  there  is 
final  judgment  in  the  case.' 

§622.  JuiJtjmcnt  nisi. —  In  states  where  attachment  suits 
against  non-residents  are  allowed  to  proceed  to  judgment  nisi, 
when  there  has  been  no  publication,  it  is  necessary  to  exact  of 
the  attaching  creditor  a  bond  by  which  he  obligates  himself 
to  refund  whatever  he  may  acquire  by  the  sale  of  the  prop- 
erty', should  the  absent  owner  appear  and  set  aside  the  judg- 
ment within  a  year.  And  the  execution  of  such  a  bond  is 
made  an  indispensable  preliminary  to  any  proceeding  against 
the  attached  property  after  such  judgment.  The  jurisdiction 
of  the  court  is  not  such  as  to  enable  it  to  render  final  judg- 
ment by  virtue  of  attachment  alone,  without  notice.- 

§  623.  Every  one  to  be  affected  directly  by  the  judgment 
must  be  afforded  an  opportunity  to  be  heard;  must  be  offered 
his  day  in  court;  must  be  allowed  full  privilege  and  time  to 
defend  his  property,  which  implies  previous  notice  of  the  hear- 
ing;' emphatically  so  in  consideration  of  the  peculiar  nature 
of  the  attachment  proceeding.  It  is  nominally  against  the 
debtor,  though  in  effect  against  his  property  in  case  he  is  not 
summoned  and  does  not  respond  to  notice;  but  the  law  favors 
the  ])ersonal  feature  of  the  suit,  and  requires  that  an  oppor- 
tunity be  given   for  the  defendant  to   preserve  its  personal 

'  Oeters  v.  Aehle,  31  Mo.  380;  ante,  similar  to  those  under  the  custom  of 

p.  4t2.  London,  and  partaking  of  the  char- 

2  Walters  v.  Monroe,  17  Md.  505  acter  of  the  old  distraint  laws.  Some 
(in  which  there  is  a  copy  of  such  an  "speckled  cattle  "  had  been  attached 
attachment  judgment  nisi);  Camp-  or  distrained  to  "compel  appear- 
bell  V.  Robert  Morris,  3  Harris  &  Mc-  ance  "  on  the  part  of  the  alleged 
Henry  (Md.)  553;  Potomac  Steam-  debtor.  There  was  judgment  nisi, 
boat  Co.  V.  Clyde,  51  Md.  174;  Harris  and  the  attaching  creditor  was  re- 
t'.  Hardeman,  14  How.  343;  Hiller  v.  quired  to  give  bond  before  sale. 
Lampkin,  54  Miss.  14  (in  exposition  Under  these  circumstances  the  court, 
of  code  of  1871,  section  1479),  in  case  rightfully  or  wrongfully,  deemed 
of  default,  even  though  there  has  prior  notice  to  the  debtor  a  non- 
been  publication  notice,  bond  is  re-  essential.  Strangely  enough,  this 
quired;  Anderson  v.  Johnson,  32  case  has  long  been  cited  to  sustain 
Gratt.  558,  in  which  it  is  held  that  a  the  untenable  position  that  notice 
non-resident  may  appear  after  judg-  is  not  jurisdictional  in  attachment 
ment  and  have  the  case  reheard,  etc.  suits  in  which  there  is  fijial  judg- 
Beech  v.  Abbott,  6  Vt.  586,  593,  was  ment. 

a  case  of  foreign  attachment,  based  ^  Abraham  v.  Nierosi,  87  Ala.  173. 
on  a  statute  authorizing  proceedings 


432  JURISDICTION.  [§§  624,  625. 

character  to  the  end.  He  is  invited  to  come,  not  as  a  mere 
claimant  of  the  property  as  in  proceedings  upon  forfeiture 
and  the  like,  but  as  the  defendant  to  the  action  —  as  one  per- 
sonally sued. 

§624.  JExercise  of  jurisdiction. —  Courts  cannot  rightfully 
exercise  jurisdiction  ^Yithout  publication  notice,  where  there 
is  no  summons  served  and  no  appearance.^  This  rule  applies 
to  all  courts,  whether  of  limited  or  general  jurisdiction.  Pro- 
cedure to  judgment  without  notice,  under  such  circumstances, 
is  error  for  which  the  decree  in  favor  of  the  attaching  cred- 
itor may  be  reversed  on  appeal.  The  reversal  may  be  had,  in 
such  case,  whether  notice  was  essential  to  jurisdiction  or  not; 
for,  when  jurisdiction  has  vested,  error  in  its  exercise  is  fatal 
on  appeal.  Omission  to  give  notice  upon  default  of  summons 
is  in  violation  of  a  requirement  common  to  the  statutes  au- 
thorizing attachment,  and  obligatory  upon  superior  as  well  as 
inferior  courts.  Such  omission,  or  even  an  insufficient  com- 
pliance with  this  statutory  requirement,  renders  the  judgment 
voidable.-  And  the  appellate  court  will  look  to  the  record  to 
ascertain  whether  the  required  notice  was  given  and  whether 
it  was  sufficient.^ 

TV.  Statutory  Requisites  Jurisdictional. 

§625.  No  ]}resumpUoyi  as  to  statute  requirements. —  It  is 
settled  that  all  the  statutory  prerequisites  to  attachment  are 
jurisdictional;  that  they  are  not  to  be  presumed  after  judg- 
ment jurisdictionless  for  want  of  them ;  and  that  such  judg- 
ment may  be  collaterally  attacked.* 

1  Potomac  Steamboat  Co.  v.  Clyde,  made,    in     substantial    compliance 

51  Md.  174;  Harris  v.  Hardeman,  14  with  statutory  requirement,  a  court 

How.  343;  j^ajparfe  Railroad  Co.,  103  of  errors  may  reverse   a  judgment 

U.  S,  794 ;  Edwards  v.   Toomer,  22  rendered  without  it.  (See  note,  post. 

Miss.  75 ;  Ridley  v.  Ridley,  24  id.  648 ;  with  reference  to  want  of  notice  in 

Calhoun  V.  Ware,  34  id.  146;  Gibson  case  of  collateral  attack,  in  which 

V.  Everett  (S.  C),  19  S.  E.  286 ;  Mar-  this  case  seems  to  say  that  publica- 

tin  V.  Dryden,  6  111.  187;  "Williams u  tion  is  not  jurisdictional.)    Compare 

Stewart,  3  Wis.  773;  Massey  v.  Scott,  Gumbel  v.  Pitkin,  124  U.  S.  131. 

49  Mo.  278;  King  v.  Harrington,  14  2  id. 

Mich.   532;  Cooper  v.   Reynolds,  10  SThormeyer  v.  Sisson,  83  111.  188. 

Wall.  308,  319:  If  there  is  no  publi-  4  ciark    v.    Thompson,  47   111.  26; 

cation,   or  no  publication  properly  Schnell  t;.  City  of  Chicago,  38  id.  383; 


§  025.] 


STATUTORY    REQUISITES    JURISDICTIONAL. 


433 


It  is  erroneous  to  say  that  seizure  gives  jurisdiction  so  as  to 
render  affidavit,  bond,  etc.,  presumable  after  decree,  when 
they  are  statutory'  prerequisites  to  seizure,  and  therefore  to 
jurisdiction.     It  cannot  be  assumed   that  seizure  has  civen 


Morris  r.  Hogle,  37  id.  150;  Cariker 
V.  Anderson,  27  id.  358;  Rowley  v. 
Berrian,  12  id.  198;  Vairin  v.  Ed- 
monson, 5  Oilman,  270;  Lawi-encev. 
Yeatman,  2  Scam.  15;  Ha3-wood  v. 
Collins,  60  111.  328;  Haywood  v.  Mc- 
Crory,  33  id.  459;  Borders  v.  Murphy, 
78  id.  81 ;  Clymore  v.  Williams,  77 
id.  618:  Roberts  v.  Dunn,  71  id.  46; 
Henrie  v.  Sweazy,  5  Blackf.  273; 
Hobson  V.  Emporium  Real  Estate 
and  Manuf.  Co.,  42  111.  306:  Martin  v. 
Dryden,  6  id.  187;  Johnson  v.  John- 
son, 26  Ind.  441 ;  Mitchell's  Adm'r  v. 
Gray,  81  id.  123 ;  Millar  r.  Babcock, 
29  Mich.  526;  King  t\  Harrington,  14 
id.  532;  Buckley  v.  Lowr}',  2  id. 
418;  Roelofson  v.  Hatch,  3  id.  277; 
Bower  v.  Town,  12  id.  233;  Van 
Norman  v.  Jackson  Circuit  Judge, 
45  id.  204;  Gay  v.  Eaton,  27  La. 
Ann.  166;  Scott  v.  Davis,  26  id.  688; 
Nelson  v.  Simpson,  9  id.  311;  New- 
man V.  Kraim,  id.  910;  Hemshein 
V.  Levy,  32  id.  340;  Walker  v. 
Barrelli,  id.  467:  Walker  i}.  Day, 
Griswold  &  Co.,  8  Bax.  77 ;  Walker  v. 
Cottrell,  6  id.  257;  Wall  v.  Pulliam, 
5  Heisk.  365;  Ferguson  v.  Vance,  3 
Lea,  90:  Grubbsr.  Colter,  7  Bax.  433: 
Bivens  v.  Mattliews,  7  id.  256 ;  Wil- 
son V.  Beadle,  39  Tenn.  510;  Pennsyl- 
vania Steel  Co.  V.  N.  J.  Southern  R. 
R.  Co.,  4  Houston  (Del.),  572;  Clark 
V.  Bryan,  16  Md.  171;  Potomac 
Steamboat  Co.  v.  Clyde,  51  id.  174: 
Smith  V.  Easton,  54  id.  138;  Marx  r. 
Abraham,  53  Tex.  264;  Bruhn  v. 
Jefferson  Bank,  54  id,  152;  Ward 
r.  McKenzie,  33  id.  297;  Shirley  r. 
Byrnes,  34  id.  625 ;  Green  v.  Hill,  4 
id.  465;  Whittenberg  v.  Lloyd,  49 
id.  633 ;  Anderson  v.  Coburn,  27  Wis. 
28 


558;  Williams  v.  Stewart,  3  id,  773; 
Warner  v.  Webster,  13  Ohio,  505; 
Myers  v.  Smith,  29  Ohio  St.  -125; 
Egan  V.  Lumsden,  2  Dis.  (Ohio),  168 ; 
Wescott  V.  Archer,  12  Neb.  345; 
Marsh  r.  Steele,  9  id.  96;  Hilton  u. 
Ross,  9  id.  406 ;  Spiegelberg  v.  Sul- 
livan, 1  New  Mexico,  575;  Phillips 
V.  Welch,  11  Nev.  187;  Moresi  v. 
Swift,  15  id.  215;  Levy  v.  Elliott,  14 
id.  435;  Creighton  v.  Kerr,  1  Cal. 
509:  People  v.  Baker,  76  N.  Y.  87; 
Robinson  v.  Nat.  Bank,  81  id.  391 ; 
McKinney  v.  Collins,  88  id.  216; 
Phelps  V.  Baker,  60  Barb.  107;  Fitz- 
simmons  v.  Marks,  66  id.  333  ;  Bogart 
V.  Svvezey,  26 -Hun,  462;  Hilbourn  v. 
Woodworth,  5  Johns.  37;  Borden  v. 
Fitch,  15  id.  121 ;  Force  v.  Gower,  23 
How.  Pr.  294 ;  Zeregal  v.  Benoist,  33 
id.  129;'  Lampkin  v.  Douglass,  27 
Hun,  51,7 ;  Bennett  v.  Edwards,  id. 
352  {hut  see  Carr  v.  Van  Hoesen,  26 
id.  316);  Bissell  v.  Briggs,  9  Mass. 
462;  Downs  v.  Fuller,  2  Met.  135; 
Leonard  v.  Bryant,  11  id.  371;  Boyn- 
ton  v.  Warren,  99  Mass.  172;  Cutler 
V.  Howe,  122  id.  541 ;  Davis  v.  Stone, 
120  id.  288 ;  Bruce  v.  Cloutman,  45 
N.  H.  37 ;  Carii'Jon  v.  Wash.  Ins. 
Co.,  35  id.  162;  Eaton  v.  Badger,  33 
id.  228;  Chadbourne  v.  Sumner,  16 
id.  129;  Dunklee  v.  Fales,  5  id.  527; 
Downer  v.  Shaw,  2  Fos.  277 ;  Becker 
V.  Bailies,  44  Ct.  167;  Taintor  v. 
Williams,  7  id.  271 ;  Roberts  v.  Car- 
penter, 53  Vt.  678;  Flanagan  v. 
Wood,  33  id.  333;  Montpelier  & 
Wells  River  R.  R,  Co.  v.  Coffrin,  52 
id.  17 ;  Fitch  v.  Rogers,  7  id.  403 ; 
Coleman's  Appeal,  75  Pa.  St.  441; 
Phelps  V.  Holker,  1  Dall.  (Pa.)  261 ; 
Fitch  V.  Ross,  4  S.  &  R.  557 ;  Water- 


434 


JURISDICTION. 


[§  626. 


jurisdiction,  when  the  real  question  is  whether  there  has  been 
any  authority  to  seize  or  to  proceed  in  the  attachiment  case  at 
all  without  compliance  with  statutory  requirements  on  the 
part  of  the  attaching  creditor.  Such  presumption  has  been 
indulged  when  the  attachment  defendant  had  been  served  and 
brought  Dersonallv  into  court.  Ko  doubt  service  gave  iuris- 
diction  of  the  personal  action;  but  how  could  it  give  it  in  the 
ancillary  proceeding?  How  could  that  enable  the  creditor  to 
acquire  a  lien  upon  unincumbered  property  before  judgment? 
How  could  that  dispense  with  the  statutory  essentials  of  an 
attachment?  How  could  the  execution  of  a  writ  of  summons 
render  a  writ  of  attachment  valid  without  an  affidavit  such  as 
the  statute  rendered  indispensable? 

§  626,  If  jurisdiction  over  the  person  of  the  defendant  in  an 
action  for  debt  renders  whatever  is  necessary  to  the  exercise 
of  it  presumable  after  decree  (as  it  unquestionably  does,  so  far 
as  the  personal  action  is  concerned,  in  a  court  of  general  ju- 

126;  Devries  v.  Summit,  86  id.  126; 
Metts  V.  Insurance  Co.,  17  S.  C. 
120;  Claussen  v.  Fultz,  13  id.  476; 
Austin  V.  Bodley,  4  Mon.  (Ky.)  434; 
Maude  v.  Rhodes,  4  Dana  (Ky.).  144; 
Hunt  V.  Johnson,  Freeman  (Miss.), 
282;  Myers  ZJ.  Farrell,  47  Miss.  281; 
Bates  V.  Crow,  57  id.  676 ;  Edwards 
V.  Toomer,  22  id.  75:  Ridley  v.  Ridley, 
24  id.  648:  Calhoun  v.  Ware,  34  id. 
146 ;  Sanford  v.  Boring,  12  Cal.  539 ; 
Wilkie  V.  Cohn,  54  id.  212;  Merced 
Bank  v.  Morton,  58  id.  360;  State  v. 
Cornelius,  5  Oreg.  48;  Dow  v.  Whit- 
man, 36  Ala.  604 ;  Wright  v.  Smith, 
66  id.  545;  Johnson  v.  Hanna,  id. 
127 ;  Flexner  &  Lichten  v.  Dickerson, 
65  id.  129;  Russell  v.  Gregory,  62  id. 
454;  Waxelbaum  v.  Paschal,  64  Ga. 
275;  Harralson  v.  Newton,  63  id. 
163;  Neal  v.  Gordon,  60  id.  112; 
Rodega  v.  Perkerson,  id.  516;  Gran- 
gers' Ins.  Co.  V.  Turner,  61  id.  561 ; 
Buchanan  v.  Sterling,  63  id.  227,  and 
very  many  other  cases.  There  are 
some  to  the  contrary  —  Paine  v. 
Mooreland,  15  Ohio,  435,  and  its  fol- 
lowing. 


house  V.  Smith,  22  Me.  337 ;  Nichols 
V.  Patton,  18  id.  231 :  Lovejoy  v. 
Hutchins.  23  id.  272;  Cower  v. 
Stevens,  19  id.  92  (Jbut  see  Mitchell 
v.  Sutherland,  74  id.  100) ;, Miller  u. 
Dungan,  36  N.  J.  L.  21;  Judah  v. 
Stephenson,  10  la.  493;  Cooper  v. 
Smith,  25  id.  269;  Morris  v.  Union 
Pacific  R.  R.  Co.,  56  id.  135;  Wilkie 
V.  Jones,  1  Morr.  (la.)  97;  Charnock 
V.  Colfax,  51  la.  70;  Darrance  v. 
Preston,  18  id.  396;  Hakes  u.  Shupe, 
27  id.  465;  Repine  v.  McPherson,  2 
Kan.  340;  Keith  v.  Stetter,  25  id. 
100;  Beckwith  v.  Douglass,  25  id. 
229;  Race  v.  Maloney,  21  id.  31; 
Bundrem  v.  Denn,  25  id.  430 ;  Butler 
V.  White,  25  Minn.  432;  Hines  v. 
Chambers,  29  id.  7 ;  Hoffner  v.  Gunz, 
id.  108;  Auerbach  v.  Hitchcock,  28 
id.  73;  Abbott  v.  Sheppard,  44  Mo. 
273 ;  Smith  v.  McCutchen,  38  id.  415 ; 
Massey  v.  Scott,  49  id.  278 ;  Cham- 
berlain v.  Paris,  1  id.  517-  Deters  v. 
Aehle,  31  id.  380;  Clark  v.  Brott,  91 
id,  473;  Miller  v.  Sharp,  3  Randolph 
(Va.),  41 ;  Hopkirk  v.  Bridges,  4  Hen. 
&  M.  413;  Faulk  v.  Smith,  84  N.  C. 


§§  627,  C28.       STATUTORY    REQUISITES   JURISDICTIONAL.  435 

risdiction),  does  it  follow  that  the  plaintiff  may  sue  out  an 
attachment  in  such  a  case  and  neglect  the  alFidavit  with  im- 
punity? that  he  can  have  his  ancillary  attachment  suit  with- 
out compliance  with  the  prerequisites?  that  a  writ,  issued  and 
executed  without  authority,  is  to  be  presumed  authoritative 
because  personal  judgment  has  been  rendered  against  the  de- 
fendant? that  competing  attachers  must  respect  the  lien  thus 
created  and  let  it  outrank  theirs  on  the  plea  of  priorit}'?  that 
assignment  before  judgment  must  be  set  aside  on  the  plea 
that  seizure  has  been  perfected  by  the  personal  judgment,  or 
6ven  by  a  judgment  in  the  ancillary  proceeding  in  which  the 
statutory  requisites  to  jurisdiction  had  been  disregarded? 

§  627.  Instead  of  assuming  that  seizure,  right  or  wrong, 
gives  jurisdiction  over  property  and  creates  a  lien,  the  first 
step  is  to  inquire  into  the  right  to  seize,  whether  the  debtor 
be  in  court  or  not.  't'hat  right  comes  from  the  statute  or  not 
at  all,  in  an  attachment  case.  If  it  is  authorized  by  the  law- 
maker only  when  ordinary  process  is  inadequate,  and  when 
certain  conditions  or  states  of  facts  are  shown  by  the  oath  of 
the  creditor  to  be  in  existence,  it  is  impossible  that  a  court 
can  have  power  to  issue  the  writ  to  seize  under  any  other  cir- 
cumstances. If  the  writ  is  issued  without  authorization,  there 
is  usurpation  of  authority.  If  it  is  executed,  the  execution 
cannot  possibly  validate  the  illegal  issue  by  giving  to  the 
usurper  jurisdiction  of  such  retroactive  character  as  to  cure 
all  that  went  before  it  and  contributed  to  the  wrongful  result. 

AVhatever  the  statute  makes  essential  to,  the  movement  of  the 
court  is  necessarily  jurisdictional.  No  court  could  entertain  an 
attachment  suit  were  all  attachment  laws  repealed.  No  court 
could  entertain  one  merely  because  of  its  general  jurisdiction. 
Whatever  conditions  precedent  the  legislature  imposes  are 
indispensable  to  the  lodgment  of  the  authorit}''  to  proceed  in 
an  attachment  case. 

§  628.  Errors  in  the  exercise  of  jurisdiction. —  It  was  as- 
sumed that  jurisdiction  had  been  already  vested,  in  Yoorhees 
V.  Bank  of  the  United  States;^  for  there  Mr.  Justice  Baldwin 
cited  several  cases  which  were  not  upon  attachments,  but 
which  turned  upon  principles  of  the  common  law  (Blaine  v. 
The  Charles  Carter,  4  Cr.  328;  AVheaton  v.  Sexton,  4  Wheat. 

1 10  Pet.  4-19. 


436  jUKisDiCTioN.  [§  629. 

506;  Talmie  v.  Thompson,  2  Pet.  157;  Elliott  v.  Piersal,  1  Pet. 
340;  Tajdor  v.  Thompson,  5  Pet.  370;  United  States  v.  Arre- 
clondo,  6  Pet.  729),  to  prove  that  ''  when  a  court  has  jurisdic- 
tion it  has  a  right  to  decide  every  question  that  arises  in  the 
cause;  and  whether  the  decision  be  correct  or  not,  its  judg- 
ment until  reversed  is  regarded  as  binding  in  every  court." 
This  is  incontrovertible.  "With  jurisdiction  conceded,  errors 
in  its  exercise  are  cured  by  judgment,  whether  the  suit  be  one 
of  attachment  or  one  at  common  law.  So  in  Grignon  v.  Astor,^ 
which  was  a  case  not  involving  an  attachraenJ:  but  a  probate 
court  judgment,  the  same  justice  assumed  that  jurisdiction 
had  been  vested,  and  therefore  he  held  that  the  giving  of 
publication  notice  was  an  act  belonging  to  the  exercise  of 
jurisdiction,  and  might  be  presumed  after  the  decree.  So  in 
Cooper  V.  Re3'nolds^  it  was  assumed  that  jurisdiction  had 
been  already  vested,  and  that  notice  might  be  presumed  after 
the  decree.  In  all  these  cases  the  error  is  in  the  assumption 
that  there  was  jurisdiction  to  hear  and  determine. 

"  The  attachment  of  property  of  a  non-resident,  upon  con- 
structive service  of  summons  and  publication,  is  extraordi- 
nary, .  .  .  and  in  derogation  of  the  common  law  and  the 
statute  law  of  the  United  States,  and  cannot  be  recognized  in 
a  case  commenced  in  a  federal  court."  ^ 

§  629.  Wherever  the  statute  of  a  state  renders  publication 
a  jurisdictional  requisite,  a  judgment  rendered  without  com- 
pliance with  it  in  this  respect  is  absolutely  void,  not  only  as 
to  the  defendant,  but  as  to  a  purchaser  under  such  judgment 
and  all  other  persons.  Such  judgment,  being  a  nullity  at  the 
time  of  its  rendition,  cannot  possibW  be  validated  by  a  sale 
under  it.* 

1  2  How.  319.  menced  in  a  state  court  and  removed 

2  10  Wall.  308.  to  a  federal,  see  Hart  v.  Sansom,  llO 

3  Lackett  v.  Rumbaugh,  45  Fed.  U.  S.  151-55.  Federal  courts  have 
30.  United  States  Revised  Statutes  no  rights  superior  to  state  courts 
(§  915),  relative  to  actions  com-  witli  respect  to  attacliments.  Bates 
menced  in  federal  courts,  applies  to  v.  Days,  17  Fed.  167. 
attachments  upon  the  property  of  *  Anderson  v.  Coburn,  2?  Wis  558. 
non-residents  when  they  have  been  Section  40  of  the  Code  of  Procedure, 
personally  served  or  have  made  ap-  under  which  this  decision  was  ren- 
pearance.  Id.;  Ex  parte  Railway  dered,  required  that  "in  all  cases 
Co..  103  U.  S.  794.   As  to  cases  com-  where  publication  is  made,  the  com- 


§  G30.] 


STATDTORY    REQUISITES   JURISDICTIONAL. 


437 


"Where  attachment  is  levied  on  land  of  a  non-resident  and 
summons  is  not  made  on  him,  the  court  possesses  no  power  to 
render  judgment  against  him  and  order  a  sale  of  his  property 
to  satisfy  it,  unless  publication  has  been  made  as  required  by 
law.^  AYhether  the  property  be  real  or  personal,  the  reason  is 
the  same.- 

§  630.  United  States  courts. —  Federal  courts  are  bound  to 
observe  the  statutes  of  the  state,  and  they  usually  look  to  the 
construction  by  the  highest  court  of  the  state,  and  follow  it; 
but  it  is  held  that  they  are  not  bound  to  do  so  —  the  act  of 
congress  not  requiring  it.*  The  provision  of  United  States 
Revised  Statutes,  section  915,  that  federal  courts  may  adopt 
state  laws  relative  to  attachments,  does  not  require  formal  in- 
corporation into  the  written  court  rules,  but  such  adoption 
may  appear  from  the  practice  of  the  courts.*  Federal  courts 
have  no  rights  superior  to  those  of  state  courts  in  matters  of 
attachment  and  ffarnishraent.* 


plaint  shall  be  first  filed,  and  the 
summons  as  published  shall  state  the 
time  and  place  of  such  filing;  "  and 
that  the  publication  shall  be  made 
"not  lei^s  than  once  a  week  for  six 
weeks."  The  court  said :  "  These 
things  were  made  indispensable  in 
order  to  give  the  court  jurisdiction 
where  service  was  made  by  publica- 
tion. It  is  an  elementary  principle, 
that,  where  jurisdiction  is  acquired 
by  publication,  the  provisions  of  the 
statute  regulating  the  mode  of  serv- 
ice must  be  strictly  complied  with. 
.  .  .  We  therefore  think  the 
judgment  was  void  at  the  time  of  its 
rendition,  on  account  of  the  omission 
to  file  the  complaint  before  or  when 
the  publication  of  the  summons  com- 
menced, as  required  by  law.  .  ,  . 
There  was  no  valid  attachment  be- 
cause there  was  no  proper  publica- 
tion of  the  summons  upon  which 
the  validity  of  the  attachment  de- 
pended." 
1  Wescott  V.  Archer,  12  Neb,  345. 


2  Haywood  v.  Collins,  GO  111.  828; 
Clark  V.  Bryan,  16  Md.  171 ;  Millar 
V.  Babcock,  29  Mich.  526;  Anderson 
V.  Coburn,  27  Wis.  558.  But  see 
Johnson  v.  Gage,  57  Mo.  160;  Hol- 
land V.  Adair,  55  id.  40;  Hardie  v. 
Lee.  51  id.  241. 

3  Lehman  v.  Berdin,  5  Dillon,  340; 
Erstein  v.  Rothschild,  23  Fed.  61; 
U,  S.  R  S.,  §  915;  Atlantic  & 
Pac.  R.  R.  Co.  V.  Hopkins,  94  U.  S. 
11;  Carroll  v.  Smith,  111  id.  556, 
563 ;  Burgess  v.  Seligman,  107  id.  20, 
33;  County  of  Cass  v.  Johnston,  95 
id.  360;  St.  Joseph  Township  v. 
Rogers,  16  Wall.  644;  State  v.  Sut- 
terfield,  54  Mo.  391. 

■*  Citizens'  Bank  v.  Farwell,  56 
Fed.  574 ;  Fullerton  v.  Bank,  1  Pet. 
603;  Williams  V.  Bank,  2  id.  96; 
Duncan's  Heirs  v.  United  States,  7 
id.  435;  United  States  v.  Stevenson, 
1  Abb.  497;  Lessees  v.  Corwin,  5 
Ohio,  398. 

5Gumbol  V.  Pitkin,  124  U.  S.  131; 
Patterson  v.  Stephenson,  77  Mo.  329. 


438 


JURISDICTION. 


[§  631. 


§  631.  The  federal  supreme  court,  in  deciding  attachment 
suits  brought  up  from  any  state,  looks  to  its  statutes  and  to 
the  construction  there  made  by  its  highest  tribunal  for  the 
governing  law,  since  that  is  wholly  statutory.  "Whether  the 
question  involved  be  the  effect  of  publication  upon  jurisdic- 
tion, or  any  other,  the  national  tribunal  will  look  to  the  stat- 
utes and  construction  prevailing  in  the  state  whence  the  case 
has  come.'  Sometimes  a  case  in  that  court  turns  wholly 
upon  a  proper  understanding  of  the  statutory  law  applicable 
to  the  attachment.  If  a  mistake  be  made  with  respect  to  that, 
the  decision  would  be  shorn  of  its  influence  as  authority  ta 
prove  that  the  non-observance  of  statutory  requirements  by  a 
state  court  is  only  voidable  error.^ 


lU.  S.  Rev.  Stat,  sec.  721.  "The 
laws  of  the  several  states,  except 
where  the*  constitution,  treaties  or 
statutes  of  the  United  States  other- 
wise require  or  provide,  shall  be  re- 
garded as  rules  of  decision  in  trials 
at  common  law,  in  courts  of  the 
United  States,  in  cases  where  they 
apply."  Brown  v.  Van  Braam,  3 
Dall.  344;  Robinson  v.  Campbell,  3 
Wheat.  212 ;  Cohens  v.  Virginia,  6  id. 
264 ;  Wayman  v.  Southard,  10  id.  1 ; 
Green  v.  Neal's  Lessee,  6  Pet.  291 ; 
Ross  V.  Duval,  13  id.  45;  Swift  v. 
Tyson,  16  id.  1 ;  Lane  v.  Vick,  3 
How.  464;  Luther  v.  Borden,  7  id.  1 ; 
Williamson  v.  Berry,  8  id.  495;  Van 
Renselaer  v.  Kearney,  11  id.  297; 
United  States  v.  Reid,  12  id.  361; 
Neeves  v.  Scott,  13  id.  268;  Carroll 
V.  Carroll's  Lessee,  16  id.  275;  Mor- 
gan V.  Curtenius,  20  id.  1 ;  Fenn  v. 
Holme,  21  id.  481 ;  Jeter  v.  Hewitt,  22 
id.  352;  Suydam  v.  Williamson,  24 
id.  328;  Sheirburn  v.  Cordova,  id. 
423;  Haussnecht  v.  Claypool,  1  Bl. 
603;  Chicago  v.  Robbins,  2  id. 
418;  Leffingwell  v.  Warren,  id.  599; 
Bridge  Proprietors  v.  Hoboken  Com., 
1  Wall.  145;  Gelpcke  v.  Dubuque,  id. 
175;  Christy  tj.  Pridgeon,  4  id.  203; 


Mitchell  V.  Burlington,  id.  274- 
Ewing  V.  City  of  St.  Louis,  5  id.  419; 
Nichols  V.  Levy,  id.  433;  Delmas  v. 
Insurance  Co.,  14  id.  667;  Boyce  v. 
Tabb,  18  id.  546. 

2  In  tlie  case  of  Cooper  v.  Reynolds, 
10  Wall.  308,  there  seems  to  have 
been  a  question  with  regard  to  the 
effect  of  publication  upon  jurisdic- 
tion according  to  the  statute  of  Ten- 
nessee, whence  the  case  had  been 
brought.  The  majority  of  the  judges 
thought  that  a  purchaser  at  an  at- 
tachment sale  could  successfully  de- 
fend against  a  collateral  attack, 
though  no  publication  or  no  suffi- 
cient publication  was  shown  by  the 
record  of  the  attachment  suit.  It 
was  shown  that  the  Tennessee  code 
required  newspaper  publication  con- 
taining the  names  of  the  parties, 
style  of  the  court,  the  cause  of  ac- 
tion, the  time  and  place  of  the  return, 
etc. ;  and  section  3524  of  that  code 
(1857)  was  as  follows :  "The  attach- 
ment and  publication  are  in  lieu  of 
personal  service  upon  the  defendant, 
and  the  plaintiff  may  proceed  upon 
the  return  of  the  attachment  duly 
levied,  as  if  the  suit  had  been  com- 
menced by  summons."    The  supreme 


§§  632,  633.]       STATUTORY    REQUISITES    JURISDICTIONAL.  439 

§  632.  In  the  United  States  supreme  court  case,  last  cited, 
notice  of  publication  as  required  by  statute,  in  the  absence  of  the 
service  of  summons  and  of  the  defendant's  appearance,  was 
deemed  non-essential  to  the  jurisdiction  because  the  case  was 
an  attachment  suit  in  rem.  It  is  difficult  to  discover  how  that 
fact  could  authorize  non-conformity  to  the  statutes,  since  it  is 
certainly  in  the  power  of  every  state  to  regulate  its  own  pro- 
cess, and  to  prescribe  the  essentials  of  a  proceedino-  against 
property  as  well  as  those  of  a  proceeding  agamst  a  person. 
Had  there  been  no  publication  prescribed,  to  take  the  place 
of  a  personal  summons,  in  legal  effect,  as  to  property;  had 
the  code  of  Tennessee  been  silent  on  the  subject,  there  would 
yet  have  been  necessity  for  notice  to  any  person  who  was  to 
be  bound  by  the  decree;  to  all  persons,  if  all  were  to  be 
bound.  A  proceeding  in  rem-  (whether  one  of  general  notice, 
to  conclude  all  the  world,  or  of  limited  notice,  to  conclude 
the  one  or  more  persons  to  whom  it  is  addressed)  is  of  no 
avail  when  there  is  no  notification  at  all,  except  in  the  lim- 
ited instances  in  which  notice  is  presumed.  The  necessity  of 
notice,  in  all  proceedings  in  rem.,  is  as  well  founded  upon  prin- 
ciple as  is  that  necessity  when  the  cause  is  in  'personam. 

§  633.  In  its  strictures  upon  that  case,  the  court  of  Tennes- 
see (see  the  preceding  note)  met  the  argument  by  denying 
that  attachment  proceeding  are  in  rem  in  that  state;  assert- 
ing that  they  are  in  personam  though  the  defendant  be  not 
served  with  summons  and  should  not  p.ppear;  that  attach- 
ment there  is  ancillar}'  and  is  not  leading  process.     An  attach- 

<  ourt  said :  "  It  is  of  no  avail  to  show  approved  by  the  supreme  court  of 
liiat  there  are  errors  in  the  record,  Tennessee  in  the  case  of  Walker  v. 
unless  they  be  sucli  as  to  prove  that  Cotti-ell,  6  Bax.  257.  It  there  said: 
the  court  had  no  jurisdiction  of  the  "We  may  as  well  dispense  with  the 
case."  Reference  was  then  made  to  levy  as  with  the  publication,"  re- 
several  Tennessee  cases  (as  well  as  to  ferring  to  section  3524  above  quoted 
United  States  cases),  and  publication  from  the  Tennessee  code.  And  then, 
was  held  not  jurisdictional  in  such  on  general  principles:  "It  is  con- 
sense  that  its  omission  would  make  trary  to  the  principle  of  justice  to 
tiie  judgment  absolutely  void.  There  take,  by  judicial  action,  the  property 
was  a  dissenting  opinion  which  held  of  a  party  and  give  it  to  another, 
that  the  state  court  of  Tennessee  without  notice  of  a  pending  suit 
never  had  acquired  jurisdiction  of  against  him."  .  .  .  "If  the  de- 
the  attachment  suit.  This  dissent-  fendant  has  no  notice  or  its  equiva- 
in.L;  opinion  has  been  since  strongly  lent,  the  judgment  is  void." 


4i0         '  .TUKISDICTION,  [§  634. 

ment  suit  at  law  is  necessarily  in  personam  when  it  originates 
in  a  federal  coiirt,  because  the  jurisdiction  depends  upon  the 
residence  of  the  parties  as  in  any  case  at  law  therein,  when 
not  included  in  statutory  exceptions;  an  attachment  is  always 
ancillar3\^  From  this  limitation  it  has  been  inferred  that  the 
non-observance  of  the  requirements  of  state  statutes  is  mere 
error  of  procedure  in  those  courts,  not  affecting  jurisdiction 
in  the  ancillary  proceeding.'-  There  must,  however,  be  "sim- 
ilar affidavits  and  proofs  and  similar  security,  as  required  by 
the  state  law."  ^  The  state  practice  must  be  followed  "as  near 
as  may  be."  *  It  is  not  a  rule  of  procedure  unless  adopted 
by  the  federal  courts.  But  state  statutes  are  rules  of  decision 
governing  rights  and  titles  litigated  in  those  courts. 

§  634.  Collateral  attaclc. —  In  a  collateral  attack  upon  an 
attachment  judgment,  the  difference  between  insufficient  no- 
1  ice  by  publication  and  an  entire  absence  of  notice  should  be 
remarked,  when  they  are  presented  as  grounds  for  treating  the 
attachment  judgment  as  a  nullity.^  If  the  plaintiff  in  such  col- 
lateral action  relies  alone  upon  the  record  to  show  that  the 
publication  in  the  attachment  proceeding  fell  short  of  the  stat- 
ute requirement,  he  will  have  to  encounter  the  presumption 
which  favors  the  record ; ''  but  should  he  have  the  silence  of 
the  record  with  regard  to  notice  to  rely  upon,  no  presump- 
tion that  notice  was  given  could  be  invoked  against  him. 

lU.  S.  R.  S.,  §§  738-842,  915;  Ex  Here  the  court  presumed  the  notice 

parte  Raih-oad  Co.,  103  U.  S.   794;  sufficient,  in  the  absence  of  evidence 

Anderson  v.    Shaffer,   10  Fed.   266;  disproving  what  appeared  of  record. 

Day  V.  Newark  India  Rubber  Co.,  1  It  would   seem   that  the  judgment 

Blatchf.   628;  Allen  v.   Blunt,  1  id.  would  have  been  held  void  had  there 

480 ;  Richmond  v.  Drej'fous,  1  Sumn.  been  no  notice  whatever. 

131;  Piquet  V.   Swan,   5  Mason,  35;  6  Boker  v.    Chapline,    12  la.    204, 

Saddler  v.  Hudson,  2  Curt.  C.  C.  6;  vidiere  the  return  was,    "Served  the 

Toland  v.  Sprague,  12  Pet.  300;  Levy  within  notice  by  reading,"  etc.,  with- 

V.    Fitzpatrick,  15  id.    171;  Chitten-  out  stating  to  whom-  held  that  it 

den's  Case,  2  Woods,  437;  Clark  v.  must  be  presumed  that  the  officer 

N.  J.  Steam  Nav.  Co.,  1  Story,  531.  served  it  personally  on  defendant  as 

-  Erstein  v.  Rothschild,  22  Fed.  61.  requii-ed   by  the  writ.     Crowley  v. 

3U.  S.  R.  S.,  §  915.  Wallace,  12  Mo.   147:    Presumption 

*  Id.,    §    914;  Indianapolis    &  St.  of    the  proper  township  when  the 

Louis  R.  Co.  v:  Horst,  93  U.  S.    291,  officer  had  omitted  to  name  it  in  his 

300;  Nudd  v.   Burrows,  91  id.  426,  i-eturn  of  service.  Bromley  i'.  Smith. 

441.  2   Hill,    517:     "Personally  served" 

5  Gregg  V.  Thompson,   17  la.  107.  presumed  to  mean  all  that  the  stal- 


§§  G35,  63G.J  cul'kt's  autiiokity  spkcial.  441 

V.  The  Court's  Autuority  Special. 

§  635.  Su2)erior  and  inferior  courts. —  The  general  rule  is 
that  judgments  of  an  inferior  court  in  which  it  has  exceeded 
its  jurisdiction  are  void;  those  of  superior  or  general  jurisdic- 
tion, only  voidable;'  but  any  court  must  have  power  to  hear, 
and  to  determine  the  subject-matter,  before  proceeding  to  ex- 
ercise it  at  all.^ 

If  the  jurisdiction  of  a  court  of  inferior  or  limited  juris- 
diction has  once  attached,  its  subsequent  proceedings  are 
presumed  as  regular  as  those  of  a  court  of  general  powers.^ 
On  the  other  hand,  when  courts  of  superior  or  general  juris- 
diction are  exercising  special  statutory  powers,  their  records 
are  subject  to  the  same  rules  as  are  those  of  inferior  or  lim- 
ited jurisdiction.* 

§  G36.  There  is  no  presumption  of  the  existence  of  jurisdic- 
tional facts  arising  from  the  exercise  of  jurisdiction  by  an 
inferior  court ;^  nor  is  there  any  arising  from  such  exercise 
by  a  superior  court,  when  acting  pursuant  to  special  author- 
ization. A  court,  though  one  of  superior  jurisdiction,  is  sub- 
ject to  the  rule  governing  courts  of  inferior  jurisdiction,  that 
nothing  shall  be  intended  to  be  within  its  powers  but  what 
is  express!}^  alleged  of  record,  when  it  is  in  the  exercise  of 

ute  required  as  to  time  and  manner  Mass.,  12  id.  718;  Florentine  v.  Bar- 

of  service.  These  presumptions  were  ton,  2  Wall.  216;  Comstock  t'.  Craw- 

in  collateral  attacks  made  on  judg-  ford,  3  id.  404;  Callen  v.   Ellison,  13 

ments  sought  to  be  set  aside  for  in-  Ohio  St.   452;  Sheldon  v.    Newton, 

sufficient  service ;  and  in  each  case  3  id.  494;  Shroyer  v.   Richmond,  16 

there  was  evidence  of  notice,  appear-  id.  455;  Wilder  v.  City  of  Chicago, 

ing  by  record.     None  of  these  cases  26   111.  182;  Dequindre  v.  Williams, 

holds   that  there  is  presumption  of  31    Ind.    456;    Smiley   v.   Samson,  1 

notice   when   the  record    makes  no  Neb.  56;  Mulford  f.  Stalzenback,  46 

showing  whatever  of  such  jurisdic-  111.  307. 

tional  fact.  3<5mjti^  y.  Engle,  44  la.  265. 

1  Kenipe's   Lessee  v.    Kennedy,  5  *  Kansas  City,  St.  Joe  &  C.  B.  R.  R. 

Cranch,  173;  Thompsons.  Tolraie,  2  Co.  v.  Campbell,  62  Mo.  585. 

Pet.  157.  spettersr.   McClannahan.  52  Ala. 

2 Beauregard  v.  New   Orleans,   18  55;  Cunninghams.  Pac.  R.   R.   Co., 

How.  502;  Shriver's  Lessee  r.  Lynn,  61  Mo.  33;  State  v.   Gachenheinier, 

2  id.  43,  60;  United  States  v.   Arre-  30  Ind.  63;  Ohio,  etc.   R.  R.  Co.  v. 

dondo,  6  Pet.  709;  Voorhies  v.  B:ink  Schultz,  31   id.  150;  State  v.  Ely,  43 

of  the   United   States,    10    id.    474:  Ala.  508. 
State  of   Rhode  Island  v.  State   of 


4tt2 


JDEISDICTION. 


[§  637. 


special  statutory  authority.  And  the  validity  of  its  judgment 
may  be  collaterally  questioned  if  the  record  does  not  show. all 
the  required  jurisdictional  facts.^ 

The  distinction  between  courts  with  reference  to  the  pre- 
sumption of  jurisdictional  facts  after  decree  is  not  that  be- 
tween inferior  and  superior,  but  between  courts  acting  pur- 
suant to  statutory  authorization  and  those  exercising  general 
powers. 

§637.  Meeord  evidence. —  Courts  of  special  statutory  juris- 
diction must  not  only  act  within  its  scope,  but  it  must  appear 
on  the  face  of  their  proceedings  that  they  so  acted,  or  their 
proceedings  are  coram  no/i  judice  and  void.'     Courts  must 

541 ;  Kemp  v.  Kennedy,  5  Cr.  172 ; 
Turner  v.  Bank  of  America,  4  Dall. 
11 ;  Ransom  v.  Williams,  2  "Wall. 
313;  Williamson  v.  Berry,  8  How. 
495 ;  Boswell  v.  Otis.  9  id.  336 ;  Eaton 
V.  Badger,  33  N.  H.  228:  Gray  v. 
McNeal,  12  Ga.  424;  Williams  v. 
Blunt,  2  Mass.  213;  Hunt  v.  Hap- 
good,  4  id.  122;  Albee  v.  Ward,  8  id. 
86;  Smith  v.  Rice,  11  id.  513;  Hen- 
drick  V.  Cleveland,  2  Vt.  329;  Wal- 
bridge  v.  Hall,  3  id.  114;  Clapp  v. 
Beardsley,  1  Aik.  (Vt.)  168;  Hall  v. 
Howd,  10  Ct.  514;  Webster  v.  Par- 
sons, Kirby(Ct.),  27;  Powers  v.  Peo- 
ple, 4  Johns.  292;  Latham  v,  Eger- 
ton,  9  Cow.  227;  Bergen  Turnpike 
Co.  V.  State,  25  N.  J.  L.  554;  City  of 
Chicago  V.  Rock  Island  R.  R.  Co.,  20 
111.  286;  Martin  v.  Dryden,  6  id.  187; 
Martin  v.  McKinney,  Sneed  (Ky.), 
380;  Cannon  r.  Wood,  2  Sneed  (Tenn.), 
177 ;  Williams  v.  Stewart,  3  Wis.  773; 
Hamilton  v.  Burum,  3  Yerg.  (Tenn.) 
355;  Chandler  t;.  Nash,  5  Mich.  409; 
Bryan  v.  Smith,  10  id.  229;  Stockett 
V.  Nicholson,  1  Miss.  75;  State  v. 
Metzger,  26  id.  65 ;  Sullivan  v.  Black- 
well,  28  id.- 737;  Edwards  v.  Toomer, 
22  id.  75;  Wickes  v.  Caulk,  5  Har. 
&  J.  (Md.)  36;  Proctor  v.  State,  5 
Harr.  (Del.)  387 ;  Potomac  Steamboat 
Co.  17.  Clyde,  51  Md.  174;  McKenzie 
V.  Ramsay,  1  Bailey  (S.  G),  459 ;  Har- 


1  Peacock  v.  Bell,  1  Saund.  69; 
Thatcher  v.  Powell,  6  Wheat.  119: 
Williamson  v.  Ball,  8  How.  (U.  S.) 
566;  Williamson  r.  Berry,  id.  495; 
Denning  v.  Corwin,  11  Wend.  648: 
Jackson  v.  Esty,  7  id.  148;  Bloom  u. 
Burdick,  1  Hill,  130:  Rogers  v.  Dill, 
6  id.  415;  Dakin  u  Hudson,  6  Cow. 
221;  Latham  v.  Edgerton,  9  id.  227; 
Borden  v.  Fitch,  15  Johns.  121 ;  Mills 
V.  Martin,  19  id.  7;  Bigelow  v. 
Stearns,  id.  39;  Goudy  v.  Hall,  30 
111.  109;  Whiter.  Jones,  38  id.  160; 
Miller  v.  Handy,  40  id.  448;  Camp- 
bell V.  McCahan,  41  id,  45;  Whor- 
ton  V.  Morayne.  62  Ala.  201 ;  Dynes 
V.  Hoover,  20  How.  65,  80;  Shriver 
V.  Lynn,  2  id.  43;  Elliott  v.  Piersol, 

1  Pet.  328;  Thompson  v.  Tolmie,  2 
id.  157;  Wilkinson  v.  Leland,  2  id. 
627;  Morris  v.  Hogle,  37  111.  150; 
Congar  v.  Galena,  etc.,  17  Wis.  477; 
Miller  u.  Handy,  40  111.  448;  Clark 
V.  Thompson,  47  id.  27;  Haywood  v. 
Collins,  60  id.  328 ;  Osgood  v.  Black- 
more,  59  id.  261;  Morse  v.  Goold,  11 
N.  Y.  281 ;  Jackson  v.  Babcock,  16 
id.  246;  Gibson  v.  Roll,  30  111.  172; 
Johnson  V.  Johnson,  id.  215;  Goudy 
V.  Hall,  id.  109;  Mason  u  Messenger, 
17  la.  268;  Grignon's  Lessee  v.  Astor, 

2  How.  338. 

"^  Ex  parte  Railroad  Co.,  103  U.  S. 
794;   Walker  v.    Turner,    9   Wheat. 


638.] 


COURT  S    AUTUOKITY    SPECIAL. 


US 


have  their  jurisdiction  evident  by  the  record  when  exceeding 
extraordinary  power  conferred  by  statute,  whether  the  court 
be  of  general  or  limited,  superior  or  inferior  jurisdiction.^  The 
rule  that  "nothing  shall  be  intended  to  be  out  of  the  jurisdic- 
tion of  a  superior  court  but  what  specially  appears  to  be  so  "  ^ 
is  not  against  the  proposition  stated. 

Attachment,  being  a  special,  extraordinary,  statute  remedy, 
comes  under  the  rule  requiring  jurisdictional  facts  to  appear 
of  record,  including  publication  notice,  when  that  is  a  juris- 
dictional fact.'' 

§  638.  Exeyxise  of  general  jurisdiction. —  When  a  court  of 
general  jurisdiction  has  exercised  general  authority  to  hear 
and  determine,  it  may  be  presumed  to  have  had  jurisdiction 
when  its  authority  is  collaterally  questioned.*  It  has  been 
held  that,  after  such  court  has  acquired  jurisdiction  of  the 


vey  V.  Huggins,  2  id.  267;  Hill  v. 
Pride,  4  Call  (Va.),  107;  Owen  v. 
Jordan,  27  Ala.  608 ;  Foster  v.  Glaze- 
ner,  id.  391 ;  Gray  v.  Reveille,  6  Wis. 
.59;  Harris  v.  Hardeman,  14  How, 
343. 

iFirebaugh  v.  Hill,  63  111.  328; 
Inman  v.  Allport,  65  id.  540;  Dakin 
t\  Hudson,  6  Cow.  221 ;  People  v. 
Koebev,  7  Hill  (N.  Y.),  39;  Cleveland 
V.  Rogers,  6  Wend.  438 ;  Harrington 
V.  People,  6  Barb.  607;  Commission- 
ers V.  Thompson,  18  Ala.  694;  Reeves 
V.  Clark,  5  Ark.  27;  Supervisors  v. 
Le  Clerc,  4  Chand.  56;  Camp  v.  Wood, 
10  Watts,  118;  Tift  v.  Griffin,  5  Ga. 
185;  Granite  Bank  v.  Treat.  18  Me. 
340;  Brooks  r.  Adams,  11  Pick.  441; 
Jones  V.  Reed,  1  Johns.  Cases,  20; 
Embury  v.  Connor,  3  Corastock,  511 ; 
West  r.  Woolfolk,  21  Fla.  189. 

2  Huxley  v.  Harrold,  62  Mo.  516; 
Gates  V.  Tusten,  89  id.  13,  18. 

3  Haywood  v.  Collins,  60  111.  328; 
Foyles  v.  Kelso,  1  Blackf.  215; 
O'Brien  v.  Daniel,  2  id.  291;  Leach 
V.  S%vann,  8  id.  68;  Clark  v.  Thomp- 
son, 47  III.  26;  Schnell  v.  City  of 
Chicago,  38  id.  383;  Morris  v.  Hogle, 
37  ill.  150;  Cariker  v.  Anderson,  27 


id.  358;  Rowley  v.  Berrian,  12  id. 
198;  Vairin  v.  Edmonson,  5  Oilman, 
270;  Lawrence  v.  Yeatman,  2  Scam. 
15:  Buckley  v.  Lowry,  2  Mich.  418; 
Roelofson  v.  Hatch,  3  id.  277.  In 
King  V.  Harrington,  14  id.  532,  the 
court  said  (p.  541):  "Where  there 
is  no  personal  service,  the  publica- 
tion of  notice  is  necessary  to  enable 
the  court  to  obtain  jurisdiction  ;  and 
no  judgment  is  valid  without  it.  It 
has  always  been  required  in  special 
proceedings  against  parties  not 
served  or  appearing,  that  the  substi- 
tuted service  shall  be  strictly  regular 
under  the  statutes.  Thompson  v. 
Thomas,  11  ]Mich.  274.  And  the 
statute  makes  proof  of  publication 
a  prerequisite  to  the  plaintiff's  de- 
claring and  proceeding  to  judg- 
ment." The  case  was  a  collateral 
attack  on  an  attachment  judgment. 
In  Millar  v.  Babcock,  29  Mich.  526, 
judgment  in  an  attachment  suit, 
without  the  notice  required  by  stat- 
ute, was  treated,  in  a  collateral  ac- 
tion, as  not  merely  voidable  but  void 
for  want  of  jurisdiction. 

•*  Crane  v.  Kimmer,  77   Ind.   215, 
held,  wliere  judgment  of  partition 


444:  juKisDicTioN.  [§  639. 

parties  and  of  the  subject-matter,  should  there  be  judgment 
rendered  without  a  trial,  the  only  remedy  would  be  by  ap- 
peal;^ that,  even  under  such  circumstances,  the  erroneous 
decree  could  not  be  successfully  assailed  in  a  collateral  action. 
But  a  court  which  has  jurisdiction  of  the  subject-matter  of  the 
personal  suit  does  not  therefore  have  it  in  the  ancillary  attach- 
ment proceeding;  the  subject-matter  of  the  former  does  not 
include  the  res  of  the  latter;  the  defendant  may  be  person- 
ally in  court,  yet  no  lien  may  be  created  upon  his  attached 
property  for  want  of  compliance  with  statutor}^  requisites. 

§  639.  The  presumption  is  not  applicable  when  a  court  has 
exercised  special  authority,^  even  though  it  be  a  tribunal  of 
general  jurisdiction.  The  record  should  show  that  the  pro- 
cedure was  in  accordance  with  statute  authorization,  and 
publication  notice  should  affirmatively  appear.  It  ought  to 
appear  by  the  return  thereon  and  the  proof  thereof,  duly 
entered.  When  the  record  supports  the  jurisdiction,  presump- 
tion favors  its  rightful  exercise  in  courts  of  all  grades.* 

But  when  an  attachment  case  has  been  tried,  and  the  fact 
found  in  the  judgment  that  "  publication  was  dul^^  and  legally 
made  on  the  defendant,"  it  has  been  sometimes  held  that  the 
judgment  could  not  be  collaterally  impeached  as  void  for  want 
of  notice.*  The  state  statutes  do  not  all  specify  minutely  in 
what  form  the  record  evidence  of  publication  notice  shall  ap- 
pear; and,  when  they  are  not  pointed,  the  courts  have  some 
latitude  of  interpretation.  When  a  statute  imperatively  pre- 
scribes what  shall  be  conclusive  record  evidence  in  an  at- 
tachment suit,  courts  follow  it  though  the  provision  may  be 
novel.'' 

was  collaterally  attacked,  it  was  pre-  Berry,  12  la.  58;  Little  v.  Sinnett,  7 

sullied  that  process  had  been  duly  id.  324 ;  Mori-ow  v.  Weed,  4  id.  77. 

served  on  all  parties.  •*  Gregg  v.  Thompson,  17  la.  107 

1  Clark  V.   Lassen    Co.    Court,    55  Kilnease  v.   Blythe,  6  Humph.  378 
Cal.  199.  Cornelius  v.    Davis,    2  Head,    253 

2  Bruhn  v.  Jefferson  Bank,  54  Tex.  Gunn  v.  Mason,  2  Sneed,  637.  These 
152.  Tennessee  cases  are   supei'seded  by 

swells  V.  Stevens,   2    Gray,   115;  Walker  v.  Cottrell,  6  Bax.  257. 

Rajniiond  v.  Bell,  18  Ct.  81 ;  Fox  v.  ^  In   New  York,  under  a  statute 

Hoyt,  12  id.  491;  Cason  v.  Cason,  31  making  the  appointment  of  trustees 

Miss.   578;  Wall  u.  Wall,  28  id.  409;  "  conclusive  evidence  that  the  debtor 

Paul  V.  Hussey,  35  Me.  97;  Fowler  therein  named  was  a  concealed,  ab- 

V.  Jenkins,  28  Pa.  St.  176;  State  v.  sconding    or     non-resident    debtor. 


§§  6i0,  G41.]  court's  authority  special.  445 

§  640.  "When  the  statute  makes  publication  (in  the  absence 
of  service  or  appearance)  a  prerequisite  to  further  procedure, 
proof  of  publication  must  appear  of  record  as  a  jurisdictional 
fact;  and  there  is  no  presumption  favoring  the  decree  in  the 
absence  of  record  evidence;  and  the  judgment  may  be  treated 
as  void  and  altogether  disregarded  in  a  collateral  action 
against  a  purchaser  claiming  title  under  such  judgment  for 
the  attaching  creditor.  This  is  true  wherever  the  statute  ex- 
])ressly  or  impliedly  makes  publication  an  indispensable  pre- 
liminary to  further  procedure;  it  is  jurisdictional;  and  the 
omission  of  it  does  not  render  a  decree  merely  voidable  but 
absolutcl}^  void.  In  such  case,  a  purchaser  at  a  sale  of  the 
property  under  execution  is  not  protected  in  his  title.^ 

§641.  Ejectment  suits. —  Collateral  attacks  upon  attach- 
ment judgments  by  means  of  ejectment  suits  against  purchas- 
ers at  attachment  sales  have  given  occasion  to  the  discussion 
of  the  effect  of  the  want  of  notice,  and  of  the  failure  of  the 
record  to  show  notice,  so  far  as  such  effects  concern  purchas- 
ers. There  is  a  disposition  to  protect  the  purchaser.  Doubt- 
less there  are  many  circumstances  under  which  he  should  be 
fully  protected  from  loss  when  the  title  he  has  bought  fails 
for  want  of  some  legal  proceeding  in  the  case  in  which  it  was 
attached,  for  which  he  is  in  no  wise  accountable.  Doubtless 
he  often  should  be  allowed  to  recover  the  purchase-money, 
and  whatever  else  is  necessarv  to  make  him  whole,  thoutjh  he 
cannot  successfuly  defend  his  title.  There  are  very  many 
circumstances  which  would  preclude  his  being  cut  off  from 

.     .     .     and  that  all  the  proceedings  IG  id.  117;  Clark  f.  Bryan,   16  Md. 

previous   thereto  [to  such   appoint-  171 ;    Johnson    v.    Layton,    5   Harr. 

ment]  were  ?'e(7u/ar,"  the  court  held  (Del.)  252;  Anderson  v.  Coburn,  27 

that  irregularities  could  not  be  in-  Wis.  558;  Freeman  v.  Thompson,  52 

vestigated  collaterally.     No  title  to  Mo.  183;  Warner  r.  Webster,  13  Ohio, 

property  sold  under  an  attachment  505;  and  the  following,  not  confined 

judgment  was  in  controversy.    Mat-  to  attachments,  but  supporting  the 

ter  of  Clark,  3  Denio,  167,  169.  same  princijjle:  Huls  v.    Bnntin,  47 

iKing    V.    Harrington,    U    Mich.  111.   396;  Campbell  v.   McCahan,  41 

532;  Miller  v.  Babcock,   29  id.   526;  id.  45;  Miller  v.  Handy,  40  id.  448; 

Haywood  v.  Collins,  60  111.  328;  Hay-  Goudy  v.  Hall,  30  id.  109;  Strieker 

wood  V.  McCrory,  33  id.  459;  Clark  r.  Kelly,  7  Hill,  10;  Foyles  v.  Kelso, 

V.  Thompson,  47  id.   26;  Schnell  r.  1  Blackf.   215;  O'Brien  v.   Daniel,  2 

City  of  Chicago,  38  id.  382;  Morris  id.  291 ;  Leach  v.  Swan,  8  id.  68. 
V.  Hogle,  37  id.  150;  Jones  v.  Jones, 


44G  JURISDICTION.  [§§  C42,  043. 

recovery  under  the  plea  that  he  bought  at  his  own  risk.  That 
subject  is  not  now  under  the  pen.  Can  he  hold  the  property 
itself,  if  the  former  owner,  the  attachment  debtor,  was  not 
present,  nor  summoned,  nor  notified  in  the  proceeding  under 
which  the  property  was  executed? 

§  G42.  It  is  certain  that  if  the  title  of  the  defendant  has  not 
been  divested  as  to  him,  it  cannot  have  been  vested  in  the 
purchaser.  It  is  also  certain  that  if  the  proceedings  are  an 
absolute  nullity  as  to  the  defendant,  he  is  not  bound  to  sue 
out  a  writ  of  error  to  have  them  declared  such. 

§  643.  Suits  in  different  counties. —  When  suit  has  been 
brought  in  one  county,  attachments  in  another  may  be  sued 
out;  but  the  suit  cannot  legall}^  be  said  to  be  brought  unless 
there  has  been  service  upon  the  defendant,  or  attachment  of 
property  of  his,  with  publication  notice.  Where  a  petition  is 
filed  but  no  Avrit  nor  summons  served,  or  an  attachment  sued 
out  but  no  levy  made,  there  is  no  suit  brought.  In  a  suit 
against  two  makers  of  a  note,  one  living  in  the  county  where 
the  suit  is  brought  and  the  other  in  another  state,  but  having 
propert}'^  in  that  where  the  suit  against  the  first  is  brought 
though  in  a  different  county,  it  may  be  reached  by  attachment 
and  publication  issued  in  the  suit  in  which  the  first  defendant 
had  been  served,  where  the  statute  so  authorizes;'  and  where 
there  is  no  statute  authorization  of  that  character,  an  attach- 
ment suit  against  the  non-resident,  brought  b}'^  levy  and  pub- 
lication in  the  county  where  his  property  is  situated,  ought 
not  be  prejudiced  by  the  fact  that  his  co-obligor  on  the  note 
had  been  personally  sued  in  a  different  county.^ 

The  court  has  no  jurisdiction  when  the  record  does  not  show 
service  or  attachment  or  garnishment  in  the  county.^ 

1  Haywood  r.  McCrory,  33  111.  459 ;  State  r.  Superior  Court,  5  "Wash.  639; 
Fuller  V.  Langford,  31  id.  248;  Hin-  McLoud  v.  Ellis,  2  id.  117.  A  mo- 
man  ?•.  Rushmore,  27  id.  509.  tion   to  dissolve    was    sustained  in 

-  Cmmty  Jurisdictional  Bounds. —  Iowa    because    the    defendant  was 

The  statute  of  Washington,  requir-  sued  out  of  his  county  and  the  at- 

ing  trial  in  the   county  where  the  tachment  served  in  his  county,  and 

attachment  is  made,  is  mandatory:  then  venue  changed  to  his  county, 

so,  if  trial  is  about  to  be  had  in  an-  Wasson  v.  Millsap,  70  la.  348.     See 

other  county,  the  court  may  be  for-  Rullman  v.  Hulse,  32  Kan.  598.     But 

bidden   by   a   writ    of    prohibition,  if   the    attachment    defendant    has 

3  Johnson  v.  Johnson,  26  Ind.  441. 


§  t54i.] 


TERRITOPaAL    LIMITS. 


Wi 


YI.  Tekkitoeial  Limits. 

§  644.  As  to  hoth  i)erson  and  in'operty. —  Courts  have  no 
extraterritorial  jurisdiction  over  either  person  or  property  in 
attachment  suits.  Jurisdiction  must  be  over  property  or  per- 
sons or  both.  A  court  cannot  take  jurisdiction  of  a  personal 
action  against  a  non-resident  who  is  not  cited,  but  it  ma}^  pro- 
ceed against  property  of  his  that  is  within  the  state,  after 
publication.  One  who  is  within  the  territorial  jurisdiction  of 
a  court  may  be  cited  to  appear,  and  may  be  defaulted  for  non- 
appearance. After  citation,  whether  he  appear  or  not,  a  bind- 
ing judgment  may  be  rendered  against  him.  The  power  of 
the  court  over  him  does  not  depend  upon  his  having  property 
within  the  state.  But,  on  the  other  hand,  if  he  is  non-resident 
and  cannot  be  cited,  the  court  can  proceed  only  against  prop- 
erty of  his  within  the  state.  After  giving  him  notice  of  its 
seizure,  the  proceeding  may  go  on  against  the  property  to  its 
condemnation.  However  great  the  demand,  no  judgment 
can  be  rendered,  of  binding  effect,  beyond  the  value  of  the 
property  proceeded  against  to  judgment ;  and  any  excess  would 
be  coram  nonjudice} 


joined  issue  in  a  county  in  which 
he  does  not  reside,  making  no  objec- 
tion to  the  jurisdiction,  a  subsequent 
attaching  creditor  cannot  defeat  the 
first  attachment  by  making  the  ob- 
jection. Payne  v.  Discus  (la.),  55 
N.  W.  483,  distinguishing  the  case 
last  cited  above,  and  also  Haller  v. 
Parrott,  82  la.  42.  In  the  case  of 
Haller  it  was  held  that  the  institu- 
tion of  a  suit  and  levy  of  attachment 
in  a  wrong  county  does  not  affect 
the  rights  of  a  mortgagee  to  the 
chattels  seized  though  the  attach- 
ing creditor  had  no  notice  of  the 
mortgage.  In  Texas,  an  action  for 
damages  may  be  brought  in  the 
county  of  the  seizure  or  in  which  the 
writ  was  issued,  though  the  defend- 
ant does  not  live  there.  Tex.  Rev.  Stat., 
art.  1198;  Perry  r.  Stephens,  77  Tex. 
246 ;  Baines  v.  Jemison  (Tex.),  23  S.  W. 
639 ;  Gibbs  v.  Petree  (Tex.),  27  §.  W. 


685 ;  Tex.  Geri.  Laws  (1889),  p.  48.  It 
has  been  held  that  jurisdiction  over 
the  garnishee  gives  jurisdiction  over 
the  attachment  though  the  defendant 
live  in  another  county.  Smith  v.  Mul- 
hern,  57  Miss.  591 ;  Barnett  v.  Ring, 
55  id.  97,  distinguishing  Cain  v. 
Simpson,  58  id.  521. 

1  Boswell's  Lessee  v.  Otis,  9  How. 
336 ;  Picquet  v.  Swan,  5  Mason,  35 : 
Thompson  v.  Thomas,  11  Mich.  274. 
"Where  there  is  no  personal  service, 
the  publication  of  notice  is  necessary 
to  enable  the  court  to  obtain  juris- 
diction ;  and  no  judgment  is  valid 
without  it.  It  has  always  been  re- 
quired, in  special  proceedings  against 
yjarties  not  served  or  appearing,  that 
the  substituted  service  shall  be 
strictly  regular  under  the  statutes. 
The  publication  stands  in  lieu  of  per- 
sonal summons."  King  v.  Harring- 
ton, 14  Mich.   532,  541 ;  Clymore  v. 


448  JURISDICTION.  [§§  645,  04G. 

§  645.  Projyerty  present  lut  dehtor  alsent.— There  is  a  pre- 
sumption that  the  owner  knows  of  the  seizure  of  his  property 
when  it  is  taken  from  him  personally;  and  the  presumption 
nas  even  been  extended  to  cases  where  property  was  taken 
from  his  agent.  More  weight  is  given  to  this  presumption  in 
some  states  than  in  others.  The  owner  is  sometimes  errone- 
ously said  to  be  brought  into  court  by  his  property.  Publica- 
tion is,  however,  required  in  addition  to  the  seizure  of  prop- 
erty, to  give  the  owner  such  notice  as  will  enable  the  court  to 
proceed  to  the  condemnation  of  the  thing  seized.  Seizure  of 
projierty  and  publication  do  not  give  the  court  jurisdiction 
over  the  owner  as  a  party  to  the  suit;  both  combined  consti- 
tute no  service  upon  him  but  merely  notice  to  him;  and  there- 
fore no  judgment  binding  upon  hira  personally,  susceptible  of 
following  him  anywhere,  entitled  to  recognition  as  a  judgment 
in  any  state,  can  be  rendered.  Though  the  condemnation  of  the 
property  ought  to  be  respected  everywhere  (when  the  ])roceed- 
ing  has  been  in  rem  with  jniblication  notice),  the  judgment 
against  a  person,  after  publication,  and  without  citation,  ought 
not  to  be  recognized  as  a  personal  judgment  in  any  state  — 
not  even  in  that  of  its  rendition.^  Courts  in  each  state  must 
give  "full  faith  and  credit"  to  the  judicial  proceedings  of 
every  other  state,  provided  the  proceedings  are  by  courts  hav- 
ing jurisdiction  —  and  there  may  always  be  inquiry  with  re- 
spect to  jurisdiction.^ 

§  646.  Fo}'eign  judgments. —  Courts  may  go  so  far  in  the  in- 
quiry concerning  the  jurisdiction  of  other  courts  beyond  the 
state  limits,  when  asked  to  recognize  and  enforce  judgments 

Williams,  77  111.  618 ;  Fitzsiramons  v.  Webster  v.  Reid,  id.  437 :  McElmoyle 

Marks,  66  Barb.  333;  Miller  r.  Dun-  v.    Cohen,   13  Pet.   312;  La  Fayette 

gan,  36  N.  J.    L.  21 ;  Livingston  v.  Ins.    Co.    r.    French,    18  How.  404 ; 

Smith,  5  Pet.  89;  Eicketts  v.  Hender-  Rose  v.  Himely,  4  Cr.  269;  Harris  r. 

son,    2   Cr.    C.    C.    157;    Lincoln    v.  Hardeman,  14  How.  334;  Christmas 

Tower,    2   McLean,    473;    Boyd    v.  v.    Russell,    5  Wall.   290;  Elliott  v. 

Urquhart.  1  Sprague,   423 ;  Warren  Piersol,  1  Pet.  328 ;  United  States  v. 

Manuf.  Co.  v.  Etna  Ins.  Co.,  2  Paine,  Arredondo,  6id.  691 ;  Voorhiesr.  Bank 

502.  of  U.  S.,  10  id.  475;  Wilcox  v.  Jack- 

1  Smith  V.   Cutchen,   38  Mo.   415;  son,  13  id.  511;  Sluiver's  Lessee  v. 

Darrance  v.    Preston,    18  la.    396 :  Lynn,  2  How.  59 :  Hickey's  Lessee  v. 

Hakes  v.  Shupe,  27  id.  465;  Mitch-  Stewart,  3  id.    762;    Williamson  v. 

eirs  Adm'r  v.  Gray,  18  Ind.  123.  Berry,  8  id.  540. 

-  D'Arcvv.  Ketchum,  11  How.  165 ; 


§  6-17.]  TEKRITORIAL    LIMITS.  4i9 

there  rendered,  as  to  allow  evidence  contradictory  of  juris- 
dictional facts  stated  in  the  record.^  Even  when  the  proceed- 
ings under  inspection  are  in  the  form  of  a  personal  action, 
they  can  only  be  sustained  in  the  absence  of  personal  citation 
or  appearance,  where  they  are  really  in  rem  and  there  have 
been  seizure  and  publication,  and  the  court  rendering  judg- 
ment has  had  jurisdiction  over  the  thing  by  having  possession 
of  it.  And  the  record  must  show  the  jurisdictional  facts  es- 
sential to  the  sustaining  of  the  decree;  -  for,  though  the  record 
is  not  absolutely''  conckisive  beyond  susceptibility  of  bein'g 
contradicted  in  its  affirmation  of  such  facts,  there  can  be  no 
proof  to  sustain  jurisdiction  when  those  facts  do  not  affirma- 
tively appear  of  record.  In  other  words,  should  the  record 
show  publication,  the  fact  may  be  investigated  in  a  collateral 
proceeding  and  may  possibly  be  disproved;  but,  should  the 
record  of  an  attachment  suit  fail  to  show  service,  publication 
or  appearance,  or  fail  to  show  that  affidavit  was  made  and  all 
statutory  requisites  observed,  and  the  judgment  should  be  col- 
laterally assailed,  no  evidence  would  be  admissible  to  prove 
publication  or  supply  any  of  these  fatal  omissions. 

§  647.  Foreign  record  assailahle. —  If  a  judgment  shows  the 
necessary  jurisdictional  facts,  and  it  is  collaterally  assailed  in 
a  state  other  than  that  in  which  the  judgment  was  rendered, 
the  assailant  may  introduce  evidence  to  disprove  the  record 
and  contradict  the  jurisdictional  facts  stated  therein  as  hav- 
ing been  passed  upon  judicially.  In  the  language  of  Mr. 
Justice  Bradley:  "If  it  is  once  conceded  that  the  validity  of 
a  judgment  may  be  attacked  collaterall}^  by  evidence  showing 
that  the  court  had  no  jurisdiction,  it  is  not  perceived  how"  any 
allegation  contained  in  the  record  itself,  however  strongly 
made,  can  affect  the  right  so  as  to  question  it.  The  very  ob- 
ject of  the  evidence  is  to  invalidate  the  paper  as  a  record.  If 
that  can  be  successfully  done,  no  statements  contained  therein 
can  have  any  force.  If  any  such  statement  could  be  used  to 
prevent  inquiry,  a  slight  form  of  words  might  alwa3^s  be 
adopted  so  as  effectually  to  nullify  the  right  of  such  inquiry. 

1  Thompson  v.  Whitman,  18  Wall,  buck    v.    Murray,    5    Wend.     156; 
457.  Christmas  v.  Russell,  5  Wall.    290; 

2  Harris  v.  Hardeman,  14  How.  334 ;  Elliott  v.  Piersol,  1  Pet.  328,  340. 
Borden  v.  Fitch,  15  Johns.  141 ;  Star- 

29 


450  JURISDICTION.  [§  G4S. 

Recitals  of  this  kind  must  be  regarded  like  asseverations  of 
good  faith  in  a  deed,  \A'hich  will  avail  nothing  if  the  instru- 
ment is  shown  to  be  fraudulent.  The  records  of  the  domestic 
tribunals  of  England  and  some  of  the  states,  it  is  true,  are 
held  to  import  absolute  verity  as  well  in  relation  to  jurisdic- 
tional facts  as  to  all  other  facts,  in  all  collateral  proceedings. 
Public  policy  and  the  dignity  of  the  courts  are  supposed  to 
require  that  no  averment  shall  be  admitted  to  contradict  the 
record.  But,  as  we  have  seen,  that  rule  has  no.  extraterritorial 
force."  ^ 

If  the  assailant  offer  evidence  tending  to  disprove  the  juris- 
dictional facts  of  the  record  offered  in  a  state  other  than  that 
in  which  the  judgment  was  rendered,  it  is  obvious  that  the 
other  party  may  combat  such -evidence  and  sustain  the  facts 
which  the  record  recites. 

§048.  Courts  no  aHtlwritjf,  trlicu. —  Jurisdiction  over  per- 
sons and  propert}',  in  any  state,  is  confined  to  the  persons  and 
property  within  the  territorial  bounds  of  the  state.  No  court 
within  it  can  exercise  jurisdiction  beyond  it.  To  exercise  it 
over  persons  or  property  in  another  state  would  be  an  unwar- 
rantable assumption  and  arrogation  of  unlawful  authority,  en- 
titled to  no  respect  on  the  principle  of  comity,  but  meriting 
rebuke  and  resistance  as  wanton  abuse  of  power.-  A  judg- 
ment rendered  in  any  state  against  a  person  or  property  over 
which  the  court  has  no  jurisdiction  is  not  entitled  to  "  full 
faith  and  credit"  in  other  states,  but  its  validity  may  be  ques- 
tioned on  jurisdictional  grounds,  and  its  enforcement  resisted;^ 
for,  not  being  by  due  process  of  law,  it  is  entitled  to  no  re- 
gard, even  in  the  state  where  it  is  rendered;  and  it  may  be 
impeached  collaterally  anywhere."* 

1  Thompson  v.  Whitman,  18  Wall.  Harper,  126;  Young  t\  Young,  2  Hill, 
468.  425. 

2  D'Arcy  v.  Ketchura,  11  How.  3  Constitution,  Fourth  Amend- 
(U.  S.)  165.     Compare  Kahn  v.  Sip-  ment. 

pili,  35  La.  Ann.  1039.     An  admin-  *  Wilcox  v.  Jackson,  13  Pet.  511; 

istrator  who  cannot  sue  for  chattels  Shriver's   Lessee  v.   Lynn,   2  How. 

of  the  estate  beyond  the  state  lines  59 ;  Hickey's  Lessee  v.  Stuart,  3  id. 

cannot     maintain     attachment     of  762;  McElmoyle  v.   Cohen,   13  Pet. 

them.    Stevenson  V.  Dunlap,  33  S.  C  312;  Williamson  v.  Bei'ry,  8  How. 

350;  Regenstein  v.  Pearlstein,  30  id.  540;  D'Arcy  v.  Ketchum,  11  id.  165; 

194;    Weyman,    Ex'r,    v.    Murdock,  Thompson    v.    Whitman,    18   Wall. 


§§  6-19- G51.]  TEKKITOKIAL    LIMITS.  451 

§649.  State' s  limitation. —  ISTo  state  in  the  Union  has  au- 
thorit}'^  beyond  its  bounds  in  any  of  its  departments;  and 
therefore  it  can  confer  none  upon  its  judiciary.  As  the  power 
of  the  United  States  government  is  limited  to  its  own  terri- 
tory (except  on  the  high  seas,  in  common  with  the  govern- 
ments of  other  nations,  and  such  rights  and  powers  as  it  has 
under  international  law),  so  the  power  of  any  single  state  is 
without  extraterritorial  authority.  As  well  might  the  United 
States  attempt  to  authorize  its  tribunals  to  adjudicate  upon 
persons  or  property  abroad  as  for  any  state  to  attempt  it  upon 
persons  or  property  in  another  state. 

§  650.  Federal  courts  limited. —  Since  jurisdictionless  judg- 
ments rendered  against  persons  or  property  beyond  state 
bounds  are  coram  nonjitdice  within  the  state  where  they  are 
rendered  as  well  as  beyond,  it  follows  that  federal  courts  sit- 
ting therein  are  not  obliged,  indeed  are  not  at  libert}^  to  give 
effect  to  them.  Federal  courts  are  not  foreign  tribunals  in 
relation  to  the  courts  of  the  state  in  which  they  may  be  sit- 
ting, but  they  have  a  separate  jurisdiction;  they  observe  the 
laws  of  the  state  in  which  they  sit,  though  they  derive  their 
authority  from  a  source  exercising  different  and  special  powers 
of  sovereignty.  But  there  is  nothing  in  the  exceptional  way 
in  which  they  are  constituted,  nor  in  their  relation  to  the 
state  in  which  they  may  be  sitting,  nor  to  its  laws,  which  war- 
rants them  in  giving  effect  to  judgments  rendered  in  disre- 
gard of  jurisdictional  requisites. 

§651.  Statutes  void  when. —  Even  if  a  state  has  passed  a 
statute  authorizing  its  courts  to  take  jurisdiction  of  personal 
actions  against  debtors  or  others  who  cannot  be  reached  by 
process,  or  of  property  actions  when  the  property  cannot  be 
seized  actually  or  constructively;  and  if  the  courts  proceed 

457;  Eaton  v.  Badger,  33  N.  H.  238;  roe  (Ky.),  434;  Phelps  v.  Holker,  1 

Carleton  v.  Washington  Ins.  Co.,  35  Dall.  (Pa.)  261;  Hitchcock  v.  Aicken, 

id.  162;  Webster  v.  Reed,  5  Wend.  1  Caines(N.  Y.),  460;  Miller  v.  Sharp, 

156;  Bissell  v.  Briggs,  9  Mass.  462;  3    Randolph   (Va.),   41;   Hopkirk  v. 

Commonwealth  v,  Greene,  17  id.  514,  Bridges,  4  Hening  &  Munford  (Va.), 

545;     Hunt    v.    Johnson,    Freeman  413;  Smith  v.  Cutchen,  38  Mo.  415; 

(Miss.),  282;  Kibbe  v.  Kibbe,  Kirby  Darrance    v.    Preston,    18    la.    396; 

rCt.),  119;  Maude  v.  Rhodes,  4  Dana  Hakes  v.   Shupe,  27  id.  465;   Mitch- 

(Ky.),  144;  Austin  v.  Bodle,  4  Mon-  ell's  Adm'r  v.  Gray,  18  Ind.  123. 


452  juKiSDiCTioN.  [§§  652,  653. 

accordingly  and  render  judgments,  such  judgments  are  not  to 
be  regarded  by  the  courts  of  other  states,  nor  b}'^  federal  courts 
sitting  within  the  state,  nor  by  courts  of  the  state  itself,  for 
the  reason  that  no  state  can  exercise  power  beyond  its  bounds, 
nor  conclude  persons  or  property  beyond  them.  Such  stat- 
utes have  been  passed ;  such  power  has  been  assumed  and  ex- 
ercised, in  more  than  one  state,  though  very  rarely.  Courts 
have  been  thus  nominull}'  authorized  to  take  cognizance  of 
personal  actions  against  non-residents,  after  publication  notice, 
without  personal  summons,  personal  appearance,  or  attach- 
ment of  property;  but  the  supreme  court  of  the  United  States 
has  decided  such  proceedings  under  such  a  statute  to  be  juris- 
dictionless,  null  and  void.^ 

§652.  Attaclimnit  different  from  execution. —  The  practice 
of  proceeding  by  personal  action  against  a  non-resident  debtor, 
after  notice  by  publication,  with  the  view  to  reach  his  prop- 
erty thereunder,  situated  within  the  state,  by  execution  fol- 
lowing judgment,  has  been  defended  in  this  way:  "Attach- 
ment," say  its  defenders,  "  is  nothing  more  than  a  preliminary 
seizure  to  aid  iinal  execution;  it  is  as  effective,  when  made 
after  judgment,  as  if  made  before,  provided  the  property  re- 
mains within  the  jurisdiction  so  that  it  can  be  found;  it  may 
be  subject  to  the  payment  of  its  non-resident  owner's  debt  if 
attached  preliminarily  and  the  debtor  notified  by  publication; 
and  why  may  he  not  be  notified  by  publication  without  any 
preliminary  attachment,  and  the  proceeding  go  on  to  judg- 
ment to  be  followed  by  a  writ  oijieri  facias?  " 

The  answer  is  that  attachment  is  something  more  than  a 
preliminary  seizure  to  aid  execution,  if  the  debtor  be  not  per- 
sonally served  and  does  not  appear.  It  is,  in  such  case,  an  act 
essential  to  jurisdiction.  The  publication  notice  does  not 
bring  the  debtor  into  court,  but  attachment,  validly  laid, 
brings  his  property  into  court. 

§  653.  Is  the  record  of  a  judgment  of  a  court  in  another 
state  entitled  to  full  faith  and  credit,  under  article  4,  section  1, 
of  the  constitution  of  the  United  States,  only  when  the  court 
had  jurisdiction  of  the  parties?     May  a  defendant,  when  sued 

1  Peunoyer  v.  Neff,  95  U.  S.  714  —  the  case  involving  a  statute  of  On - 
gon. 


§  654,]  juKisDicTiox  i:n'  garnishment.  453 

upon  a  judgment  rendered  in  another  state,  plead  and  prove 
that  he  was  not  there  served  with  process?  Ko  —  if  there 
was  process  against  his  property  and  he  had  notice.^ 

To  the  rule  of  comity  there  is  this  exception :  no  court  is 
bound  to  execute  judgments  rendered  in  other  states  when 
their  enforcement  would  be  violative  of  the  policy  or  the 
juridical  morality  of  its  own  state. 

YII.  Jurisdiction  in  Garnishment. 

§  654.  "  Garnishment  is  a  species  of  proceeding  in  rein^  in  the 
nature  of  sequestration  of  the  debtor's  effects.  Unless  the  prop- 
erty is  within  the  jurisdiction  of  the  court  issuing  the  garnish- 
ment so  that  it  may  be  seized  {i.  e.,  attached  in  the  garnishee's 
hands),  jurisdiction  neither  of  the  i^es  nor  the  person  can  be  ac- 
quired." ^  It  is  held  in  Texas  that  when  the  defendant  is  non- 
resident, garnishment  confers  jurisdiction  to  render  judgment 
against  a  credit  acknowledged  bv  the  garnishee,'  but  the  court 
there  has  no  jurisdiction  when  the  garnishee  does  not  answer, 
unless  proof  of  his  indebtedness  be  made.*  And  there  must 
be  publication  to  give  the  defendant  his  offer  of  his  day  in 
court  before  jurisdiction  can  be  acquired  under  such  circum- 
stances. It  is  said  in  Missouri  that  if  the  defendant  is  not 
personally  served  and  does  not  appear,  the  answer  of  the  gar- 
nishee does  not  give  jurisdiction  when  the  return  of  the  gar- 
nishee summons  is  invalid;^  and  if  it  is  without  defect,  there 
can  be  no  jurisdiction  to  hear  and  determine  the  cause  against 
such  non-served  and  non-appearing  defendant,  unless  he  has. 
been  notified  so  that  he  may  be  presumed  to  know  of  his 

^  See  Oilman  v.  Oilman,  126  Mass.  3  Goodman  v.  Henly,  80  Tex.  499. 

26 ;  but  the  question  was  not  whether  ^Haggerty  v.  Ward,  25  Tex.  144. 

a  judgment  duly  rendered  in  a  state  ^  Gates  v.  Tustin,  89  Mo.  13 ,  Haley 

other  than  Massachusetts,  in  a  pro-  v.  Railroad  Co.,  80  id.  112;  Norvell 

ceeding  tJi  rem,  would  be  entitled  to  v.    Porter,    62   id.    309;   Maulsby  v. 

full  faith  and  credit.  Farr,  3  id.  439;  Epstein  v.  Salorgne, 

2  Alabama,  etc.  R.  Co.  v.  Chumley,  6  Mo.  App.  352 ;  Connor  v.  Pope,  18 

92  Ala.    319;  Central,  etc.  R.  Co.  v.  id.  86.     See  Phelps  v.  Boughton,  27 

Carr,  76  id.  388;  Smith  v.  Railroad  La,  Ann.  592;  Hebelu.  Insurance  Co., 

Co.,  33  N,  H,  337;  Green  v.  Bank,  25  33  Mich.  400. 
Ct.  452;  Keating  v.  Refrigerator  Co., 
32  Mo.  App.  293. 


454  jUEiSDicTioN.  [§  654. 

peril  and  have  his  opportunity  to  defend.  To  sum  up  in  a 
word:  garnishment  alone  gives  no  jurisdiction  over  either  the 
defendant  or  his  property.  Though  both  the  attaching  cred- 
itor and  the  garnishee  reside  in  the  state,  publication  to  the 
non-resident  defendant  is  necessary  to  jurisdiction  so  that  his 
property  in  the  garnishee's  hands,  or  a  debt  due  him  from  the 
garnishee,  may  be  held.* 

1  Berry  r.  Davis,  77  Tex.  191;  Nye  11   Fos.   201;    Erskine  v.   Staley,  12 

V,  Lipscomb,  21  Pick.   261;  Tingley  Leigh,  406;     Jones    v.    Comings,   6 

V.  Bateman,  10  Mass.  345;  Brashear  N.  H.  498.     See  Merchants,'  etc.  N. 

V.  West,  7  Pet.  620;  Young  v.  Ross,  Bank  v.  Glue  Co.  (Pa.),  30  A.  290. 


CHAPTER  XYII. 

ATTACHMENT  PROCEEDINGS  IN  COURT. 

I,  Special  Appearaxce  of  the  Defendant g§  655-663 

II.  General  Appearance 664-668 

III.  Withdrawal  of  Attorneys  —  Effect  on  Previous  Ap- 

pearance               669-671 

IV.  Proceedings  to  Vacate  Attachment  —  In  General    .        672-685 
V.  Quashing  for  Errors  Patent 686-699 

VI.  Dissolution  on  Evidence  Beyond  the  Record  .     .     .        700-710 
Vn.  Traverse  After  Dissolution  by  Bonding       ....        711-718 

I.  Special  Appeakaxce  of  the  Defendant. 

§  655.  The  law  governing  the  appearance  of  the  defendant 
in  attachment  suits  is  much  the  same  as  in  other  classes  of 
cases,  and  therefore  authorities  on  the  subject  may  be  prop- 
erly drawn  from  decisions  upon  the  general  practice  as  well 
as  from  those  concerning  the  distinct  subject  of  this  treatise. 

Appearance  is  either  special  or  general. 

Special  appearance  is  the  coming  of  the  defendant  into 
court  and  making  entry  on  the  record  of  the  purpose  for 
which  he  appears,  which  must  be  something  less  than  defend- 
ing the  suit  upon  its  merits.  Whether  previously  served  with 
summons  or  not;  whether  a  publication  notice  has  been  made 
or  not,  the  defendant  may  voluntarily  appear  either  specially 
or  generally. 

§  656.  Purpose  and  use. —  The  usual  purposes  of  special  ap- 
pearance are  to  quash  the  proceedings  for  irregularities  patent 
upon  the  record,  to  except  to  the  jurisdiction,  and  even  to  set 
aside  judgments  rendered  by  default  or  otherwise  on  the 
ground  of  want  of  jurisdiction. 

The  advantage  of  a  special  appearance  to  the  defendant  is 
in  the  opportunity  which  it  gives  him  to  object  m  limine  to 
irregularities  without  being  prejudiced  in  consequence  when 
he  comes  to  answer  to  the  merits.^     He  may  succeed  thus  in 

1  Petty  V.  Frick  Co.,  86  Va.  503.  merits,  when  his  motion  to  quash 
Even  if  he  afterwards  y)leacl  to  the    has  been  overruled,  he  does  not  thus 


45G  ATTACHMENT    PKOCEEDINGS    IX    COURT.       [§§  657,   658. 

defeating  the  action  at  its  threshold;  but,  if  unsuccessful,  he 
may  either  sta}''  out  of  court  and  risk  the  almost  certain  re- 
sult of  being  defaulted,  or  he  may  regularly  appear  and  de- 
fend upon  the  merits,  reserving  the  questions  previously  over- 
ruled when  they  concern  jurisdiction  (except  such  jurisdictional 
matters  as  are  waived  by  answer),  or  when  the  practice  of 
his  state  allows  such  reservation  of  other  points  decided  in 
limine. 

§  657.  He  is  not  deemed  a  personal  party  to  the  suit  bv 
reason  of  his  special  entr\^  of  record  for  any  of  the  purposes 
above  mentioned,  if  he  confines  himself  to  them  in  his  mo- 
tion. For  instance,  he  mav  move  to  quash  for  reasons  ap- 
parent on  the  face  of  the  papers  without  subjecting  himself  to 
all  the  consequences  of  becoming  a  party  to  the  suit  to  which 
he  may  not  even  have  been  summoned  or  notified;  or,  if  sum- 
moned, to  which  he  has  not  responded  as  a  party  by  coming 
unconditionally  into  court.^  By  such  appearance  he  does  not 
assent  to,  or  cure,  any  want  or  defect  of  summons  or  other 
errors  of  the  proceeding.-  Even  if  the  defendant  makes  a 
special  appearance  to  appeal  the  case,  he  thus  makes  no  waiver 
of  objection  to  the  service.^ 

§658.  Objection  to  jurisdiction.— ^hen  the  defendant  ap- 
pears to  object  to  the  jurisdiction  because  he  was  not  served, 
or  not  properl}'  served,  he  cannot  be  held  as  thereby  respond- 
ing to  the  summons  and  submitting  to  the  jurisdiction ;  ^  but  if 
he  appears  to  object  to  the  jurisdiction  on  other  grounds  than 
want  of  summons,  there  is  a  w^aiver  as  to  the  summons.'^    Un- 

waive  his  objections.     Harkness  r.  154;  Stanley  r.  Arnow,  13  Fla.  361; 

Hyde,  98  U.  S.  476.  National  Furnace  Co.  v.  Mobile  Iron 

iLane    v.    Leech,   44    Mich.    163;  Works,  IS  Fed.  863. 

Bushey   v.    Raths,  45   id.    181;  Lor-  ^Martin   v.  Thierry,   29  La.  Ann. 

ing  V.  Wittich,  16  Fla.  617;  Johnson  362. 

V.   Buell,   26   111.    66;  Blackwood  v.  *  Lee    v.    O'Shannessy,    20   Minn. 

Jones,  27  Wis.  498 ;  Pry  u  Hannibal  173;    Covert  v.    Clark,    23    id.  539 

&   St.    Jo.   R.    R.  Co.,  73   Mo.  123;  Michels  v.  Stork,  44  Mich.  2;  Cedai 

Evans  v.   King,  7  id.  411 ;  Whiting  Hill,  etc.  Mining  Co.  v.  Jacob  Little, 

V.  Budd,  5  id.  443:  Moore  v.  Dicker-  etc.  Mining  Co.,  15  Nev.  302;  Mur- 

son,  44  Ala.  485;  Bonner  v.  Brown,  phy  v.  Ames,  1  Mon.  277:  Potomac 

10  La.  Ann.  334;  Crary  v.  Barber,  1  Steamboat  Co.  r.  Clyde,  51  Md.  174. 

Col.   172;  Manice   v.   Gould,   1  Abb.  Heffner  r.  Gunz.  29  Minn.  lOS. 

Pr.  (N.  S.)  255.  ^Chmch  v.  Grossman,  49  la.  444 

2  Rodolph  V.  Mayer,  1  Wash.  Ter.  Peufield  v.  Harris  (Tex.  Civ.  App.) 

27  S.  W.  763. 


§  659.]  SPECIAL    APPEARANCE    OF    DEFEXDA^StT.  457 

less  the  record  shows  that  the  defendant  means  to  confine 
himself  to  the  question  of  jurisdiction,  he  will  be  deemed  in 
court  for  general  purposes  when  he  pleads  to  the  jurisdiction  ;  ^ 
but  an  unserved  defendant  may,  with  proper  reservation  en- 
tered, specially  appear  and  even  move  to  set  a  default  aside 
without  rendering  himself  liable  to  the  rendition  of  a  final 
personal  judgment  against  him.^  For  the  object  is  to  correct 
the  error  of  pronouncing  default  without  citation,  and  "  it 
can  hardly  be  claimed  that  by  making  the  objection  he  cures 
the  very  defect  complained  of."^  Objection  for  want  of  serv- 
ice is  exception  to  jurisdiction;  and  the  defendant  may  after- 
wards plead  to  the  merits  without  prejudice.  The  objection 
is  waived  only  when  he  so  pleads  in  the  first  instance  without 
insisting  on  the  absence  or  illegality  of  service.*  Though  he 
should  specially  appear  after  judgment  and  move  to  strike 
the  case  from  the  docket  for  want  of  service,  he  would  not 
thus  cure  defects  nor  make  the  void  decree  a  valid  one;'^  but 
the  result  has  been  held  to  be  otherwise  upon  general  appear- 
ance after  judgment.® 

§  659.  A  general  appearance  does  not  preclude  setting  up 
want  of  jurisdiction  in  the  answer,'^  except  when  the  jurisdic- 
tional objection  is  susceptible  of  being  waived.^  It  has  been 
held  that  a  defendant,  notified  by  publication,  may  appear 
and  move  for  a  new  trial,  after  the  decree  has  been  entered 
against  his  property,  without  thus  giving  the  judgment  a  per- 
sonal character.^  The  reason  assigned  was  that  "  the  judg- 
ment, being  m  i^em,  had  binding  force  only  against  the  at- 
tached property;  that  upon  such  judgment  the  property  of 
the  defendant  other  than  that  which  was  attached  could  not 

1  Aultman  v.  Stinan,  8  Neb.  109.  23  Minn.  539.     (-See  Curtis  v.   Jack- 

2Boals  V.  Shules,  29  la.  507;  Jones  son,  id.  268.) 

V.    Byrd,    74    111.    115;    Klemm    v.  6  Anderson  u.  Coburn,  27  Wis.  558, 

Dewes,  28  id.  317.  564. 

3  Boals  V.  Shules,  29  la.  507-509.  ^  Wheelock  v.   Lee,  74  N.  Y.  489 ; 

^Harkness  v.  Hyde,  98  U.  S.  476;  Landers  r.  Staten  Island  R.  R.  Co., 

Stanley  v.  Arnow,  13  Fla.  361 ;  Black  53  id.  460 ;  Brown  v.  Saratoga  R.  R. 

V.  Clendenin,  3  Mont.  44.  Co.,  18  id.   495;  Dn  Puy  v.   Strong, 

5  Dorr  V.  Gibboney,  3  Hughes  C.  37  id.  272. 

C.  382;  Potomac  Steamboat  Co.  v.  svarner  v.   Radcliflf,   59  Ga.  448; 

Clyde,  51  Md.  174 ;  Covert  v.  Clark,  Crowell  v.  Galloway,  3  Neb.  215. 

9  Mayfield  v.   Bennett,  48  la.  194. 


458  ATTACHMENT    PROCEEDINGS    IN    COURT.       [§§  660,  661. 

be  sold,  nor  does  the  judgment  operate  a  lien  thereon.  .  .  . 
Banta  v.  "Woods,  32  la.  469.  There  were  no  defects  in  the 
judgment  to  be  cured.  It  was  a  judgment  in  lem^  and  had  no 
other  force  or  effect.  The  appearance  of  the  defendant,  by 
filing  a  petition  to  vacate  it,  does  not,  in  the  absence  of  any 
action  upon  his  petition,  give  the  judgment  more  force,  or 
make  it  different  from  what  it  was  before.  If  it  was  in  rem 
only,  it  so  remained  after  the  petition  to  set  it  aside  was  dis- 
missed." 

§  660.  Wlien  (q)pearance,  nominally  sjyecial,  is  general. — 
An  appeal  may  be  taken  —  the  defendant  specially  appearing 
therefor —  without  Avaiving  objection  to  service;^  though  ap- 
pearance for  that  purpose  has  been  held  to  be  a  general  one.^ 

One  who  specially  enters  his  appearance  on  the  record  to 
object  to  the  jurisdiction  of  the  court  will  be  held  to  have 
made  a  general  answer  if  it  is  in  any  respect  responsive  to  the 
merits.* 

§  661.  Should  he  plead  prescription,  he  will  be  deemed  to 
have  made  a  general  appearance,  however  he  may  have  made 
his  entr3\*  Should  he  ask  for  default,  he  will  be  treated  as  a 
general  appearer,  though  he  may  have  entered  himself  as  ap- 
pearing specially  to  contest  the  sufficiency  of  service.'^  Should 
he  move  for  a  stay  of  proceedings  to  give  him  time  for  an- 
swering, he  would  be  a  general  appearer ;  and  he  waives  all 
defects  in  the  service  of  process."  Should  he  file  a  demurrer 
and  obtain  leave  to  answer,  he  would  make  a  general  appear- 

1  Martin  v.   Thierry,  29  La.    Ann.  v.  Swineford,  28  Wis.  257;  Keeler  v. 

363.  Keeler,  24  id.  523;  Upper  Mississippi 

2Wasson  v.  Cone,  86  111.  46;  City  Transportation  Co.  v.  Whitaker,  16 

of  Alton  V.  Kirsch,  68  id.  261.  id.  220;  Tallman  v.  McCarty,  11  id. 

^Re  Macauly,  87  Hun,  577;  Handy  401 ;  Stonach  v.  Glessner,  4  id.  275; 

V.  Insurance  Co.,  37  Ohio  St.  366-9.  Adams  Express  Co.  v.  Hill,  43  Ind.  157. 

See  Barnett  v.   Rayburn  (Tex.  Civ.  In  Pennsylvania  the  defendant's  ap- 

App.),  16  S.  W.  537.  pearance  de  hene  esse  is  conditional. 

*  Miller  v.  Whitehead,  66  Ga.  283.  If  the  summons  be  returned  "served" 

But  even  a  general  appearance  by  it  is  general,  but  otherwise  special, 

attorney  is  not  retroactive  to  avoid  Blair  v.  Weaver,  11  Serg.  &  Rawle, 

prescription     previously     acquired.  87.     "Such  an  appearance  is  pecul- 

Etheridge  v.  Woodley,  83  N.  C.  11.  iar  to  Pennsylvania  practice.     It  is 

5  Pry  V.  Hannibal  &  St.  Jo.  R.  R.  not  found  in  the  English  practice." 

Co.,  73  Mo.  133.  Rolard  v.  Mason,  66  Pa.  St  138,  140. 

<>  Insurance  Co.  of  North  America  See  Baldwin  v.   McClelland  (III.),  36 

N.  K  143. 


§  662.]       SPECIAL  APPEAEANCE  OF  DEFENDANT.  459 

ance.^  Should  he  ask  a  continuance,-  or  consent  to  one,'  with- 
out reservation,  the  effect  is  general. 

Though  the  debtor  may  make  his  first  appearance  for  the 
purpose  of  suing  out  a  writ  of  error,  yet  if  the  case  should  be 
remanded  he  may  be  considered  rn  court,  and  a  trial  ma}''  be 
had  contradictorily  with  him.*  A  special  appearance  to  con- 
test the  jurisdiction  of  the  court  does  not  confer  jurisdiction 
upon  the  court  over  the  appearer  as  defendant  in  the  suit."^ 

But  it  has  been  held  that  if  a  non-resident  appears  to  except 
specially  to  the  jurisdiction,  yet  files  an  answer  to  the  merits, 
averring  therein  that  he  answ^ers  only  in  the  event  of  the 
overruling  of  his  special  plea  to  the  jurisdiction,  he  thus  makes 
a  general  appearance.''  It  is  held  that  he  may  appear  in 
garnishment  proceedings  to  claim  property  as  exempt  and 
not  give  jurisdiction  in  the  main  action.' 

§  662.  SeJative  to  notice. —  The  sufficiency  of  notice  cannot 
be  questioned  b}^  the  defendant  after  he  has  responded  to  it  by 
making  appearance.^  Xor  can  he  complain  that  he  has  re- 
ceived no  notice  of  proceedings  against  a  garnishee,  if  he  has 
come  into  court  personally  or  by  attorney  without  making- 
objection.^  ISTotice  to  him  of  the  garnishment  is  jurisdictional 
when  required  by  statute.^'^ 

Besides  the  absence  or  illegality  of  summons  or  notification, 
patent  defects  in  the  affidavit,  the  bond,  the  writ  and  the  re- 
turn are  fruitful  sources  of  objections  that  may  be  made  upon 
special  appearance.  Such  objections  are  often  interposed  after 
general  entry,  before  answer  to  the  merits,  but  they  may  be 
set  up  specially  by  the  defendant  without  making  himself  a 
party  to  the  suit  for  all  purposes. 

1  Miller  v.  State,  35  Ark.  276;  Cragin,  3  Dill.  474;  Toland  v. 
Myers  v.  Smith,  29  Ohio  St.  120.  Sprague,  12  Pet.  300. 

2  Lane  r.  Leech,  44  Mich.  163.  6  Grizzard  v.   Brown,  2  Tex.  Civ. 

3  Miller  v.  State,  35  Ark.  276.  App.  584.  See  York  r.  State,  73  Tex. 
4Reaugh  v.  McConnel,  36  111.  373.  657;  Same  title,  137  U.  S.  15;  Sam 
5  Branner   v.    Chapman,    11   Kan.     v.  Hochstadler,  76  Tex.  162. 

118;  Heffner  v.  Gunz,  29  Minn.  108;  ^  Weber  v.  Cordes  (Wis.),  58  N.  W, 

Covert  V.  Clarke,  23  id.  539 ;  Lee  v.  771. 

O'Shannessy,   20  id.   173 ;   Potomac  « Williams  &  Bruce  v.  Stewart,  3 

Steamboat  Co.  v.  Clyde,  51  Md.  174;  Wis.  773. 

Harris  v.  Hardeman,  14  How.  343;  9  Everdell  v.  Sheboygan,  etc.  R.  R. 

Des  Moines  &   Minn.   R.   R.  Co.  v.  Co.,  41  Wis.  395. 

Alley,  103  U.  S.  794.     See  Nazoo  v.  lo  Williams  v.  Williams,  61  Li.  612. 


460  ATTACHMENT    PKOCEEDINGS    IN"    COURT.       [§§  663,  664:. 

§  663.  When  the  objections  of  a  special  appearer  have  been 
overruled,  and  he  does  not  then  answer  to  the  merits,  he  is 
treated  as  not  in  court,  and  may,  at  the  proper  time,  be  de- 
faulted for  non-appearance  ^  (if  he  has  been  cited  or  notified), 
just  as  though  he  had  not  been  in  court  in  any  capacity. 

II.  General  Appearance. 

§  664:.  Unqualified  entry. —  Appearance  is  always  deemed 
general  when  it  is  unqualified.  If  the  defendant  files  pleas  virt- 
ually admitting  the  service  of  the  writ,  and  goes  to  trial  with- 
out objection,  his  appearance  is  general.'^ 

When  the  defendant  pleads  general  denial,  the  plaintiff  may 
omit  offering  the  writ  in  evidence  without  affording  ground 
for  reversing  the  judgment  afterwards  rendered  in  his  favor. 
If  the  validit}'^  of  the  writ  is  to  be  questioned,  it  must  be  by 
special  plea,  in  Texas.^ 

If  the  defendant  has  replevied  the  attached  goods  from 
the  officer,  and  has  caused  a  traverse  of  the  plaintiff's  affidavit, 
it  is  held  that  he  cannot  deny  service  of  the  attachment.'*  If 
he  do  not  plead,  there  ma}''  be  judgment  against  him,  and  he 
and  his  sureties  will  be  liable  on  the  replevin  bond.^ 

When  appearance  is  not  entered  as  special  or  conditional, 
the  defendant  cannot  afterwards  be  permitted  to  prove  by  parol 
evidence  that  his  appearance  was  thus  limited.^  But  it  ma}^ 
be  qualified  by  the  terms  of  an  application  to  the  court,  though 
there  be  no  express  reservation  confining  appearance  to  the 
purpose  of  the  application.  For  instance,  if  an  unserved  de- 
fendant applies  to  a  state  court  for  removal  of  a  cause  to  a 
federal  court,  he  is  not  to  be  deemed  as  assenting  to  the  juris- 
diction of  the  former,  though  he  could  hardly  deny  it  in  the 
latter  in  case  of  removal  thither  on  his  own  application.'' 

1  Loring  v.  Wittich,  16  Fla.  617.         80  Tex.  216,  limiting  Latham  v.  Sel- 

2  Rosenberg  v.  Claflin,  95  Ala.  249 ;    kirk,  11  id.  314. 

Hutcheson    v.    Powell,    93  id.    619;  *  S.  C.  Herbst  Im.  Co.  v.  Burnham, 

Andrews  v.   Mundy,  36  W.  Va.  22;  81  Wis.  403. 

Elliott  V.  First  N.  Bank,  2  Col.  App.  ^  Vogt  v.  Dorsey,  85  Tex.  90;  Rev. 

164 ;  First  N.  Bank  v.  Greenwood,  79  Stat.  Tex.,  arts.  170,  180,  181. 

Wis.  269.  6  Collier  v.  Falk,  66  Ala.  223. 

^Fort  Worth,  etc.  Co.  v.  Hitson,  ■?  Schwab  v.  Mabley,  47  Mich.  512, 

515  —  a  case  in  equity. 


§§  G65,  G66.'] 


GENERAL    APPEARANCE. 


461 


§665.  Waive?'. —  The  rule  is  (applicable  to  attachment  as 
well  as  other  suits),  that  a  general  appearance  waives  all 
irregularities  that  are  not  jurisdictional/  and  it  waives  such 
jurisdictional  objections  as  are  susceptible  of  being  waived: 
such  as  that  of  non-residence.  If  one  would  confine  himself 
to  an  objection  of  that  character,  though  jurisdictional,  he 
must  make  a  special  appearance.'  When  the  defendant  comes 
to  test  the  truth  of  the  affidavit,  he  is  in  court  for  all  purposes.' 

§  6(j6.  a  general,  voluntary,  unconditional  appearance  is 
equal  to  the  personal  service  and  return  of  summons.*  It  is 
so,  even  thous^h  the  defendant  should  afterwards  withdraw 
his  appearance,  or  attempt  to  do  so;  for  the  effect  of  appear- 
ing would  be  the  giving  of  jurisdiction  over  him  as  a  personal 
party,  so  that  judgment  need  not  be  confined  in  its  operation 
to  the  property  attached.^  It  waives  defects  and  irregulari- 
ties of  the  previous  proceedings.^  It  waives  all  objections  to 
the  summons  and  service,"  whether  the  general  appearance  is 
personal  or  by  attorne3\^ 


1  Hammond  r.  Starr,  79  Cal.  556 ; 
Wing  V.  Bradner  (Pa.),  29  A.  291  ; 
Blyler  v.  Kline,  64  Pa.  St.  130:  Hart 
V.  Smith,  17  Fla.  767;  Colien  v. 
Trowbridge,  6  Kan.  385;  Shuster  v. 
Finan,  19  id.  114;  Williams  v.  Stew- 
art, 3  Wis.  773.  Answering  to  the 
merits  waives  a  plea  in  abatement 
in  an  attachment  case,  in  Missouri. 
Audenreid  v.  Hull,  45  Mo.  App.  202. 
Objections  to  the  writ  are  waived 
when  attachment  is  opposed  on  other 
grounds  only.  Wolf  v.  Cook,  40 
Fed.  432. 

2Crowell  V.  Galloway,  3  Neb.  215; 
Varner  v.  Radcliff,  59  Ga.  448. 

^Greenwell  v.  Greenwell,  26  Kan. 
530;  First  N.  Bank  v.  Greenwood, 
79  Wis.  282;  Williams  v.  Stewart,  8 
id.  773 ;  Roy  v.  Union  Co.  (Wyo.),  26 
P.  996. 

4  Christal  V.  Kelly,  88  N.  Y.  285. 


Here,  after  two  defendants  had  ap- 
peared and  filed  a  plea  and  given 
an  undertaking,- the  summons  was 
amended  by  inserting  the  name  of  a 
third  defendant.  He  voluntarily 
appeared;  and  when  judgment  was 
given  against  the  three  defendants, 
the  sureties  were  held  bound  by  the 
undertaking  executed  before  the 
amendment  of  the  summons.  Catlin 
V.  Ricketts,  91  N,  Y.  668.  Supporting 
the  general  statement  of  the  text: 
Fuller  V.  Beck,  46  Hun,  519;  Catlin 
V.  Ricketts,  91  N.  Y.  668. 

5  Creighton  v.  Kerr,  1  Col.  T.  509 ; 
Blackwood  v.  Jones,  27  Wis.  498. 

6  Carpenter  v.  Central  Park,  etc. 
R.  R.  Co.,  11  Abb.  Pr.  (N.  S.)  416; 
Brown  v.  Balde,  3  Lans.  (N.  Y.)  283; 
Williams  v.  Stewart,  3  Wis.  773; 
Greenwell  v.  Greenwell,  26  Kan.  530. 

■7  Fuller  V.  Beck  (N.  Y.),  15  N,  E. 


spomeroyu.  Ricketts,  27  Hun,  242;  Ind.  5;  The  Floyd  County  Ag.  and 

Everdell  v.  Sheboygan  R.  R.  Co.,  41  Mechan.  Association  v.  Tompkins,  23 

Wis,  395 ;  Rowland  v.  Coyne,  55  Cal.  id.  348 ;  Wiley  v.  Pratt,  id.  628  ;  Bush 

1  (but  see  Douglass  v.  Habestro,  58  v.  Bush,  46  id.  70 ;  Collins  v.  Rose,  59 

How.  Pr.  276);  Hall  v.  Palmer,     8  id.  33. 


403  ATTACHMENT    PROCEEDINGS    IN    COURT.       [§§  667,  66S. 

§  (jQ7.  The  objection  to  an  attachment  bond  which  had  but 
one  surety  though  the  statute  required  two  was  held  to  have 
been  waived  by  the  defendant's  general  appearing,  answering 
and  bonding  of  the  attached  property.^  Bonding,  or  acknowl- 
edgment of  the  service  of  the  attachment  suit,  authorizes  a 
general  judgment  against  the  defendant.^  Though  the  attach- 
ment should  be  subsequently  dissolved,  the  acknowledgment 
of  service  by  the  defendant  will  enable  the  plaintiff  to  prose- 
cute the  personal  suit  to  judgment.^ 

When  the  defendant  executes  and  files  a  forthcoming  bond, 
he  makes  a  general  appearance,*  and  so  if  he  files  a  bond  to 
dissolve.  If  the  property  is  released  to  him  on  condition  that 
he  shall  appear  and  answer  and  give  security,  he  waives  cita- 
tion.^ By  a  motion  to  dissolve  on  the  ground  that  the  plaint- 
iff's affidavits  for  attachment  were  false,  the  defendant  tacitlv 
waived  all  objection  to  irregularity  of  service."  The  waiver, 
by  all  parties  litigant,  of  objection  to  the  service  of  the  writ 
by  an  unauthorized  ofBcer,  cuts  off  complaint  by  subsequent 
judgment  creditors.^ 

§668.  Authorizing  entry. —  The  defendant  himself  must 
have  authorized  the  entry  of  his  appearance,  or  it  will  be  of 
no  avail.  Minutes  of  the  clerk  will  not  be  held  to  include  a 
person  not  cited  under  the  term  "  defendants,"  when  there 
are  such  in  court,  by  the  entry  that  they  had  come  into  court 
by  their  counsel  and  submitted  their  cause.^     If  general  ap- 

396;  Halett  v.   Nugent,    71  Mo.   13;  son  v.  Patterson.  6  How.  (Miss.)  193; 

Adams  Express  Co.  v.  Hill,  43  Ind.  Wright  v.   Oakey,  16  La.   Ann.  125. 

157;  Womack  v.   McAhren,  9  id.  6;  See  Hazlitt  v.  Morrow  (N.  J.),  26  A. 

Braytou  v.  Freese,  1  id.  ISl;  Bury  885;  Leeds  v.   Mueller,  51  N.  J.  L. 

V.  Conklin,  23  Kan.  460;  Baldwin  v.  467;  Davis  v.   Mahoney,  38  id.   104; 

Murphy,  82  111.   485  (The  People  v.  N.  J.  Revision,  p.  54,  §  65. 

Barnet,    91   id.   422;  The   People   v.  3  id. 

Bradley,  60  id.  390:  mawdamifs  cases);  *  New  Haven  Co.  r.  Raymond,  76 

Bowen  v.    School  District,  10  Neb.  la.  225. 

265;   Louisville,    etc.    R.    R.    Co.    v.  ^  Williams  r.  Gilkerson  (La.  Ann.), 

Nicholson.  60  Ind.  158;  Bradford  n  13  So.  394;  Rathbone  v.  London,  6 

Coit,  77  N.   C.  72.     See  Spettigue  v.  La.  Ann.  440 ;  Bush  v.  Downing,  24 

Button,  9  Pa.  Co.  Ct.  156.  id.  272. 

1  Bryant  v.  Hendee,  40  Mich.  543.  ^  Hillyer  v.  Biglow,  47  Kan.  473. 

-  Buice  V.  Lowman,  etc.  Co.,  64  Ga.  '  Walter  v.  Bickham,  122  U.  S.  320. 

769;  Blyler  v.  Kline,  64  Pa.  St.  130;  ^  Fee  v.  The  State  ex  rel.  Pleasant, 

Peebles   v.  Weir,  60  Ala.  413 ;  Rich-  74  Ind.  66. 
ard  V.  Mooney,  39  Miss.  357 ;  Wilkin- 


§  QGO.]  WITHDRAWAL    OF    ATTOENEYS ITS    EFFECT.  463 

pearance  has  been  entered  b}^  mistake  or  fraud,  it  may  be  set 
aside.^  If  a  teller,  cashier  or  other  minor  officer  or  any  per- 
son appears  for  a  corporation,  it  will  not  be  bound  unless  he 
was  previously  authorized,  or  his  action  afterwards  ratified.^ 

III.  Withdrawal   of   Attorneys  —  Its  Effect  on  Previous 

Appearance. 

§  669.  Not  effective. —  When  a  defendant  has  appeared  by 
attorney  he  cannot  put  himself  out  of  court  by  his  own  volition 
tion ;  nor  will  the  withdrawal  of  his  attorney  from  the  case 
have  the  effect  of  relieving  the  defendant  from  the  responsi- 
bility as  a  party  which  the  appearance  has  created.  If  the 
attachment  debtor  has  not  been  served ;  if  he  has  not  been 
notified  by  publication  upon  failure  of  summons;  if  the  stat- 
ute requires,  upon  such  failure,  that  there  must  be  not  only 
advertisement  in  the  newspapers,  but  written  notice  mailed  to 
the  debtor  beyond  the  state  bounds,  and  these  requirements 
have  been  neglected,  still  he  is  deemed  to  be  in  court  if  an 
attorney  has  appeared  generally  for  him.  And  if,  before  plea 
filed,  the  attorne}'-  should  withdraw,  the  defendant  will  be  in 
court;  the  waiver  of  summons  and  notice  and  postal  commu- 
nication will  be  unaffected  by  the  withdrawal,  and  he  will  be 
liable  to  default. 

The  effect  of  general  appearance,  whether  by  the  debtor  in 
proper  person  or  by  his  attorney,  is  to  render  the  suit  a  per- 
sonal one  with  the  attachment  proceeding  ancillary  thereto. 
The  supreme  court  say,  in  general  terms,  that  such  appear- 
ance converts  "  into  a  personal  suit  that  which  was  before  a 
proceeding  ^V^-  reinr  ^ 

1  Allen  V.  Coates,  29  Minn.  46.  as  required  by  the  territorial  statute 

-  Branch  Bank  v.  Poe,  1  Ala.  396 ;  of  Colorado,  where  the  case  arose. 

Head  V.  Merrill,  34  Me.  586;  Oliver  Attorneys  appeared  for  the  debtor, 

V.  C.  &  A.  R.  R.  Co.,  17  111.  587;  Cal-  but  withdrew  before  pleading.  Both 

lahan  v.  Hallowell,  2  Bay  (S.  C),  8;  the  proceeding  in  rem  and  that  in 

Baltimore  &  Ohio  R.  R.  Co.  v.  Galla-  personam  were  evidently  dependent 

hue,  12  Gratt.  655.  upon  the  waiver  of  summons  and 

^Creighton  v.  Kerr,  20  Wall.  8,  12.  notice.    Neither  could  have  resulted 

In  this  case  there  had  been  no  sum-  in  valid  judgment  without  the  debt- 

mons,   nor    publication    and   postal  or"s  appearance  when  the  statutory 

communication  in  default  thereof,  requirements  had  been  disregarded. 


4G4  ATTACHMENT    PKOCEEDINGS    IN    COURT,        [§§  670,   671. 

§  670.  "  Witliout prejudice.''''  —  Express  mention  in  the  with- 
drawal that  it  is  without  prejudice  to  the  plaintiff,  after  a  rule 
to  plead  has  been  entered,  leaves  the  plaintiff  in  possession  of 
the  rights  acquired  by  the  appearance:  hence,  should  the  rule 
be  disregarded,  he  may  take  default  against  the  defendant.* 
Without  such  expression  the  defendant  could  be  defaulted  for 
not  pleading.  Must  the  case  be  delayed  because  the  defend- 
ant has  no  attorno}'"  in  court?  Must  the  plaintiff  suffer  be- 
cause of  such  neglect  by  the^lebtor,  who  is  now  a  party  to 
the  suit?  Whether  the  withdrawal  of  the  attorne3'^s  w^ho  have 
appeared  for  him  in  court  be  "  without  prejudice  to  the  plaint- 
iff" or  otherwise,  the  result  is  the  same. 

Under  such  circumstances  the  judgment  may  be  for  more 
than  the  sum  claimed  in  the  affidavit  if  more  has  been  sued 
for  in  the  declaration  (though  privilege  could  be  awarded 
only  for  the  amount  in  the  affidavit);  and  the  reason  is  that 
the  WMthdra\val  of  the  attorneys  is  not  the  withdrawal  of  their 
client,  who  remains  liable  to  have  a  personal  judgment  ren- 
dered against  him.' 

§  671.  The  withdrawal  of  a  plea  does  not  leave  a  case  as 
though  there  had  never  been  any  pleading.  Its  filing  may 
have  been  the  defendant's  first  appearing  in  the  case.  Its  un- 
conditional withdrawal  cannot  destroy  the  effect  of  that  ap- 
pearance.* After  general  appearance  by  attorney  the  defend- 
ant is  in  the  position  he  would  have  occupied  if  personally 
summoned,*  Special  appearance  may  be  withdrawn  without 
such  result,^ 

1  Id,     The  court  were  deciding  a  s  Eldred  v.   Bank,   17  Wall,    551 
case  in  which  the  withdrawal  of  the  Lawrence  v.  Yeatmao,  2  Scam,  17 
attorneys   was    expressly  "  without  Rowley    v.     Berrian,    12      111,     198 
prejudice ;"  and  they  say :  "Wede-  Thompson    v.    Turner,    22    id.    389 
cide  the  case   upon  the  facts  pre-  See    Dana  v.   Adams,    13    id,    691 
sented,  and  nothing  would  be  gained  Forbes   v.    Hyde,  31   Cal.  346;  Cun- 
by  attempting  to  go  beyond  them."  ningham    v.    Goelet,   4   Denio,    71 ; 
There   can   be   no  doubt,  however.  Lutes  v.  Perkins,  6  Mo.  57 ;  Wynn  v. 
that  the  omission  of  the  reservation  AVyatt,    11    Leigh,    584;    Lodge   v. 
would    not     affect    the    plaintiff's  State   Bank,  6   Blackf.  557;  Michew 
rights.     The   attorneys    of  the   de-  v.  IMcCoy,  3  Watts  &  S,  501. 
fendant    could    not    prejudice    the  ■*  Habich  v.  Folger,  20  Wall,  1,  7; 
plaintiff  by  their  withdrawal,     Du-  United  States  v.  Yates,  6  How.  605 ; 
bois  V.  Glaub,  53  Pa.  St.  238,  Murray  v.  Vanderbilt,  39  Barb.  140. 

2  Creighton  t'.  Kerr,  sjtpro,  5\Vi-ight  v.  Boynton,  37  N.  H.  9. 


§^  t»72,  673.]     rKocf:EDiNGS  to  vacate  —  in  general. 


4G5 


IV.  Proceedings  to  Vacate  Attachment  —  In  General. 

§  672.  Since  a  court  which  has  authorizedly  granted  an 
attachment  has  the  inherent  power  of  controlling  its  own 
process,  it  is  competent  to  entertain  a  motion  to  quash  it.^ 
The  application  need  not  necessarily  be  made  to  the  judge 
who  granted  the  writ.^  It  may  be  made  to  a  judge  at  cham- 
bers, in  some  states,^  though  it  is  usual  to  move  in  open  court. 
Vacating  an  attachment  is  a  judicial  act,  and  one  of  such 
character  that  it  cannot  be  intrusted  to  the  ministerial  officer 
who  issued  the  writ.* 

§  673.  The  merits  of  the  principal  cause  are  not  involved  in 
a  rule  to  dissolve  the  attachment.'^  The  rule,  when  founded 
on  the  ])apers  upon  which  the  writ  was  issued,  cannot  be  de- 
feated by  the  plaintiff's  introduction  of  new  evidence  to  sus- 
tain his  grounds.^  An  attachment  may  be  dissolved  as  to  a 
part  of  the  property  attached,  in  which  case  the  order  should 
designate  what  part  is  released.-  A  motion  may  lie  to  dis- 
solve "the attachment"  though  the  plaintiff  has  laid  a  second 


See  Graham  v.  Spencer,  14  Fed. 
603 ;  Jones  V.  Andrews,  10  Wall.  327  ; 
Wright  V.  Andrews,  130  Mass.  1-19. 

1  Phillips  r.  Welch,  11  Nev.  187; 
Furman  v.  Walter,  13  How.  Pr.  348; 
Bank  of  Commerce  v.  Rutland,  etc. 
R.  R.  Co.,  19  id.  1;  Morgan  v. 
Avery,  7  Barb.  656 ;  Gay  v.  Eaton, 
27  La.  Ann.  166. 

2  Rupert  t\  Haug,  87  N.  Y.  141; 
s.  c,  62  How.  Pr.  314.  See  Conklin 
V.  Butcher,  5  How.  Pr.  386;  White 
V.  Featherstonhaugh,  7  id.  357;  Bank 
of  Lansingburgh  v.  McKie,  id.  360. 

sCureton  v.  Dargan,  12  S.  C.  122; 
Wells  V.  Danford,  28  Kan.  487; 
Shedd  V.  McConnell,  18  id.  594. 
But  it  was  held  that  the  rule  could 
not  be  heard  and  determined  in 
chambers.  Cohn  v.  Justice,  1  Kan, 
220. 

4  Matter  of  Marty,  3  fearb.  229.  But 
there  is  an  exception  mentioned  in 
this  case  under  the  New  York  prac- 
tice existing  when  it  was  rendered. 
30 


In  Michigan  application  is  made  to 
circuit  court  commissioners.  Patter- 
son V.  Goodrich,  31  Mich.  225;  Vin- 
ton V.  Mead,  17  id.  388;  Albertson  v. 
Edsall,  16  id,  203;  Nelson  v.  Hyde. 
10  id.  521 ;  Edgarton  v.  Hinchman,  7 
id.  352.  A  question  of  fraud,  on  a 
motion  to  dissolve,  is  for  the  court 
exclusively,  in  Pennsylvania,  Walls 
V.  Campbell,  125  Pa.  St.  346. 

5  Hermann  v.  Amedee,  30  La.  Ann, 
393 ;  Olmstead  v.  Rivers,  9  Neb.  234 ; 
Turpin  v.  Whitney,  6  Wash.  61 ; 
Alexander  v.  Brown,  2  Disney,  395. 

6  Myers  v.  Whitehurst,  24  S.  C. 
196;  Sutherland  v.  Bradner,  34  Hun, 
519;  Steuben  Co.  Bank  v.  Alberger, 
56  How.  (N.  Y.)  Pr.  345.  See  Fol- 
som  V.  Teichner,  27  Mich.  107,  in  ex- 
position of  Compiled  Laws,  sections 
6428-31  (1871),  relative  to  attach- 
ments dissolved  by  commissioners, 
etc. 

'  Ellsworth  V.  Scott,  3  Abb.  New 
Cases,  9. 


466  ATTACHMENT  PEOCEEDINGS  IN  COURT,   r^§  674,  675. 

upon  the  first.^  But  if  he  has  two  attachment  cases,  on  the 
same  cause  of  action  against  the  defendant,  the  plea  of  lis 
pendejis  will  lie.''  Clerical  errors  or  omissions  in  stating  the 
ground  of  attachment  afford  no  reason  for  quashing  when 
the  context  explains  the  meaning.' 

§  674,  By  the  defendant. —  The  motion  is  made  by  the  de- 
fendant whose  property  has  been  attached,*  He  has  this  right 
by  reason  of  his  ownership  and  the  interest  which  he  has  in 
having  the  property  released.  He  should  have  either  owner- 
ship or  the  right  of  possession.'^  The  right  of  possession, 
without  ownership,  would  entitle  him  to  make  the  motion ; 
and  he  should  allege  this  right  in  his  application.^  He  should 
verify  his  allegation  when  the  practice  of  his  state  requires 
it;^  but  if  he  has  filed  a  sworn  answer,  that  may  be  used  as 
his  affidavit  on  motion  to  dissolve  where  the  motion  may  be 
legally  made  thereafter.^ 

The  defendant  cannot  be  heard  for  the  purpose  of  having 
the  attachment  dissolved  if  he  has  assigned  the  property;'' 
nor  if  the  property  is  under  execution  of  a  judgment  against 
him;^"  nor  if  he  has  agreed  to  a  summary  sale  and  the  reten- 
tion of  the  proceeds  till  final  judgment;"  nor  if  he  has  no 
rightful  claim  to  the  possession ; ^^  nor  if  he  has  no  title ;^'  but 
a  partner  in  property  may  be  entitled  to  the  restoration."  The 
defendant  cannot  question  the  debt  on  motion  to  dissolve.''^ 

§  675.  By  surety. —  The  surety  on  a  forthcoming  bond  is  so 
far  a  party  to  the  proceeding  that  there  may  ultimatel}'"  be  a 

1  Wearne  v.  France,  3  Wyo.  273.  6  Johnson  v.  De  Witt,  36  Mich.  95; 

2  Smith  V.  Derse,  41  Kan.  150.    See  Patterson  v.  Goodrich,  31  Id.  225, 
Seeley  v.  Mo.  etc,  R.  Co.,  39  Fed.  252.        7  Osborne  v.  Bobbins,  10  Midi.  277. 

3  Harrison  Works  v.  Hosig,  73  Wis.        ^  Nelson  v.  Murch,  23  Minn.  229. 
184;  Corrigan  v.  Nichols   (Tex.),  24        9  Chandler  v.  Nash,  5   Mich.  409; 
S.  W.  952.  Gathercole  v.  Bedel.  65  N.  H.  211. 

i  Cockrell  v.  McGraw,  33  Ala.  526 ;  lo  Johnson  v.  De  Witt,  36  Mich.  95. 

Schoppenhast  v.    Bollnian,   21   Ind.  ii  Wickham  v.  Nalty,  41  La.  Ann. 

280;  Williams  v.  Walker,  11  la.  77;  284, 

Isham    V.    Ketchum.    46    Barb.    43 ;  12  Price  v.  Reed,  20  Mich.  72. 

Ketchum  v.   Ketchum,   1   Abb.  Pr.  13  Mitchell  v.  Skinner,  17  Kan,  563. 

(N.  S.)  157;  Kincaid  v.   Neal,  3  Mc-  i^  Edwards  v.  Hughes,  20  Mich.  289. 

Cord  (S.  C),  201 ;  McBride  v.  Floyd,  15  Fisher  v.  Taylor,  2  Martin  (La.). 

2  Bailey  (S,  C),  209,  113;    Smith    v.    Elliott,   3    id.   366; 

5  Zook  V.  Blough,  42  Mich.  487.  Brown   v.   Ainsworth,    32  Ga.   487 ; 

Lord  V.  Gaddis,  6  la.  57, 


§^   07G,  677.]       PEOCEEDINGS    TO    VACATE  —  IX    GENERAL.  467 

judgment  against  him  in  the  ciase,  and  he  is  certainly  interested 
in  the  property  attached  so  far  as  to  be  responsible  for  its 
restoration  upon  judgment  being  rendered  against  his  principal. 
He  has  therefore  been  held  competent  to  move  for  the  vaca- 
tion of  the  attachment.^  The  surety  on  a  dissolution  bond  has 
succeeded  in  arresting  a  judgment  on  the  ground  that  the  at- 
tachment was  void  for  fatal,  patent  defects,  after  a  previous 
motion  to  arrest,  made  by  his  principal,  had  been  overruled.^ 

§  676.  By  any  interested. —  If  there  are  other  parties  in  the 
■case  interested  in  having  the  attachment  dissolved,  any  one  of 
them  may  move  to  quash ;  but  it  is  essential  to  the  right  of 
any  one  to  move  that  he  be  interested  in  setting  the  attach- 
ment aside.'  Where,  in  the  practice  of  some  of  the  states, 
<claimants  other  than  the  defendant  and  intervenors  are  al- 
lowed to  appear,  their  right  to  apply  for  the  vacation  of  the 
attachment  depends  upon  the  interest  which  they  establish  in 
themselves  with  right  of  possession ;  and  if,  upon  a  change  in 
the  plaintiff's  pleadings,  such  right  and  interest  become  no 
longer  involved,  they  cannot  be  heard  to  make  the  motion.'* 

§  677.  If  the  plaintiff  and  the  defendant  agree  that  the 
plaintiff  shall  take  judgment  beyond  his  demand  and  hold  the 
attached  propert}'^  therefor,  it  is  a  fraud  which  will  enable  a 
subsequent  attacher  to  set  aside  the  first  attachment.^  Any 
fraudulent  advantage  taken  by  the  first  attacher  is  ground 
for  vacating  his  levy,^  provided  the  person  seeking  to  vacate 
has  standing  in  court  and  interest  in  the  question;''  but  in 
New  York  it  seems  that  interest  must  be  acquired  after  the 
fraudulent  attachment.^    But  when  a  second  attacher  moves 

1  Burch  V.  Watts,  37  Tex.  135.  N.    J.    L.    29;    Briggs  v.  French,    3 

2Nealv.  Gordon,  60  Ga.  113.  Sumner,  251;  Temple  v.  Hooker,  6 

3  Long  V.  Murphy,  27   Kan.   875;  Vt.  240. 

Mitchell  V.  Skinner,  17  id.  563;  Cape-        ^Scharff  v.   Chaffe,  68   Miss.  641 ; 

hart  V.  Dovvery,  10  W.  Va.  130;  Sims  Pitts  v.  Scribner,  19  N.   Y.   S.   519; 

V.   Jacobson,    51   Ala.    186;    Tim  v.  National  Bank  v.  Barker,  60  Hun, 

Smith,  93  N.  Y.  87.  578;  14  N.  Y.  S.  529;  First  N.  Bank 

*Mendes  v.  Freiters,  16  Nev.  388.  v.   Greenwood,   79  Wis.   269;  Dear- 

sPage  V.  Jewett,   46   N.   H.   441;  born  r.  Vaughan,  46  Kan.  506 ;  Long 

Fairbanks   v.   Stanley,   18  Me.  296;  v.  Murphy,  27  id.  375.    5ee  Salmon  v. 

Clark  V.  Foxcroft,  7  id.  348.  Mills,  49  Fed.  333. 

*Bus\vell  V.  Davis,  10  N.  H.  413;        ^Key  West  Building  Ass'n  v.  Bank 

Spear  v.  Hubbard,  4  Pick.  143;  Na-  of  Key  AVest,  63  Hun,  633;  Allen  v. 

tional  Papeterie  Co.  v.   Kinsey,   54  Bank  of  Key  West,  id. 


4G8  ATTACHMENT  PKOCEEDINGS  IN  COURT.        [§  678. 

to  vacate  that  of  the  first,  bis  own  attachment  must  be  regular 
and  free  from  fraud. ^ 

On  a  motion  to  discbarge  an  attachment  of  mortgaged  chat- 
tels, the  mortgagor  has  no  interest  except  to  the  value  of  the 
property  above  the  mortgage.^  An  intervener  who  has  proved 
bis  interest  may  move  to  dissolve  the  plaintiff's  attachment.' 
The  husband  of  a  wife  whose  homestead  has  been  attached, 
who  is  in  joint  possession  with  her,  has  interest  to  move  to 
set  the  attachment  aside.* 

It  has  been  held  that  if  all  parties  agree  to  the  sale  of  the 
attached  property,  and  that  the  proceeds  shall  be  held  for 
judgment,  the  defendant  is  estopped  from  denial  of  the  suffi- 
ciency of  process.^ 

§  678.  By  assignee. —  The  assignee  of  attached  property  is 
interested  in  having  it  released,  and  he  may  therefore  appear 
and  make  application  for  that  purpose.^  Even  if  he  has  re- 
ceived an  assignment  of  only  a  part  of  the  property,  he  may 
move  to  quash  with  reference  to  such  part.'  An  assignment 
will  not  dissolve  a  previous  attachment.^ 

The  insolvency  of  the  defendant  does  not  work  the  dissolu- 
tion of  an  attachment  made;  it  does  not  dislodge  the  lien.'' 
But  under  a  United  States  bankruptcy  proceeding  there  was 
dissolution  though  no  order  to  that  effect  v/as  entered.^"  At- 
tachment was  stayed  in  a  federal  court  while  insolvency'  pro- 
ceedings were  pending  in  a  state  court.^' 

1  Hodgman  v.  Barker,  63  Hun,  631 ;  8  Pierce  v.  Crompton,  13  R.  I.  312. 

Tim  V.  Smith,  93  N.  Y.  87.  9  Life  Ass'n  v.  Fassett,  103  111.  315 

2McCord  V.  Krause,  36  Neb.  764.  Franklin  Bank  w.  Batchelder,  23  Me 

See   Smith   v.    Derse,  41    Kan.  150;  60;  Vreelan  v.  Brown,  1   Zab.   214 

Wyman  v.  Matthews,  53  Fed.  678.  Ingraham  v.  Phillips,  1  Day  (Ct.),  117 

3  Delmore  u.  Owen,  44  Hun,  296.  Buffam   v.    Seaver,    16    N.   H.    160 

4Rowe  V.  Kellogg,  54  Mich.  206.  Kittridge  v.    Emerson,    15  id.   227 

See  Henry  v.    Gregory,   29   id.    67;  Kittridge    v.    Warren,    14    id.    509 

Hodson  V.  Van  Fossen,  26  id.  68.  Wells  v.  Braiider.   10  Smedes  &  M. 

sWickman  v.  Nalty,  41  La.  Ann.  348.      Compare    Fisher    v.   Vose,    3 

284.  Rob.  (La.)  451;  Peck  v.  Jennese,  7 

6Baum  V.  Raphael,  57   Cal.    361;  How.    612;  Foster's   Case,   2  Story, 

Shoe  &  Leather  Bank  v.  Mechanics'  131 ;   Wright  v.  Dawson,  147  Mass. 

Bank,  89  N.  Y.  440.  384. 

^Trow's  Printing  and  Book-bind-  ^Sullivan  v.  Robb,  88  Ala.  433. 

ing  Co,  V.  Hart,  85  N.  Y.  500 ;  S.  C,  9  "  Newfeld  v.  Newfeld,  37  Fed.  560; 

Daly,    413;  Moses  v.  Arnold,  43  la.  U.  S.  Stat.,  §§  913,  915. 
187. 


§§  GTO-082.]       PKOCEEDINGS    TO    VACATE IN    GENERAL.  4G9 

§  679.  ^y  lien-lioJder. — A  mortgagee  or  other  lien-holder, 
being  protected  otherwise,  has  not  such  inte'rest  in  the  attach- 
ment proceeding  instituted  by  another  creditor  as  to  render 
hira  competent  to  appear  and  move  to  quash  the  attachment.^ 

Attachment  is  not  dissolved  because  creditors  other  than 
the  plaintiff  assent  to  a  mortgage,  offered  by  the  defendant 
to  all,  to  secure  their  claims  before  the  writ  was  issued  —  the 
acceptance  being  subsequent  to  the  issuance  and  lew.^ 

§  680.  Garnishee. —  Garnishees,  who  are  not,  in  the  full 
sense,  parties  to  the  suit  between  the  plaintiff  and  defendant, 
and  even  interested  strangers  who  have  made  themselves  inter- 
vening parties  to  protect  their  rights,  have  been  allowed  to 
make  the  motion  to  dissolve,  under  the  practice  in  some  of 
the  states;^  and  subsequently  attaching  creditors  have  been 
allowed  to  intervene,  set  up  their  rights,  and  move  to  quash 
the  first  attachment.* 

§681.  Intervenor. —  In  order  to  entitle  an  intervenor  to 
make  such  motion,  his  .interest  must  be  direct  —  at  least  not 
too  remote.  A  judgment  creditor  in  another  suit  cannot  be 
heard  to  move  the  vacation  of  attachment  on  the  ground  that 
it  is  an  obstruction  to  his  execution;  though  he  may,  it  seems, 
on  the  ground  that  the  attachment  is  a  cloud  upon  his  title;^ 
An  execution  levied  by  a  third  party  is  no  bar  to  a  motion  by 
the  defendant  to  dissolve  attachment.^ 

§682.  On  judge's  motion. —  The  judge,  though  necessarily 
disinterested  in  the  issue  of  the  suit,  may  quash  ati  attach- 
ment without  motion  when  there  are  causes  affecting  his  ju- 
risdiction, as  when  there  is  no  affidavit  at  all,  or  one  radically, 
incurably  and  fatally  defective  on  its  face,  or  like  reason; 
or  he  may  do  so  on  motion  by  an  amicus  curia? 

1  May  V.  Courtnay,  47  Ala.  185 ;  *  Baird  v.  Williams,  19  Pick.  381 ; 
Cockrell  v.  McGraw,  33  id.  526.  Smith  v.  Davis,  29  Hun,  301 ;  Tim  v. 
Compare  Hosea  v.  McClure,  42  Kan.  Smith,  93  N.  Y.  87 ;  Ruppert  v. 
403;    Henry   v.    McClure,    id.    408.  Haug,  87  id.  141. 

See    Simmons  v.    Wood,   144  Mass.  ^  Steuben   Co.    Bank   v.  Alberger, 

385.  83  N.  Y.  274;  s.  C,  61  How.  Pr.  227. 

2  Wallis  V.  Taylor,  67  Tex.  431.  6  Doctors  K.  &  K.  v.  Post.  etc.  Co., 

3  Chase  v.  Foster,  9  la.  429;  Baii'd  58  Mich.  489,  overruling  Johnson  v. 
V.  Williams,  19  Pick.  381;  Pierce  v.  Dewitt,  36  id.  95. 

Richardson,  9  Met.  (Mass.)  69;  Hen-        '^  Ex  parte  Railroad  Co.,  103  U.  S, 

d^erson  v.    Thornton,    37   Miss.   448;  794;  Planters'   &   Merchants'   Bank 

Pendleton  v.  Smith,    1  W.  Va.    16;  V.  Andrews,  8  Porter  (Ala.),  404. 
Clarke  v.  Meixseli,  29  Md.  221. 


470  ATTACHMENT  PKOCEEDINGS  IN  COURT.        [§  683. 

The  plaintiff,  as  a  matter  of  course,  may  release  the  attach- 
ment at  any  time;  and  his  attorney  may  do  so  by  virtue  of 
his  general  authority  as  attorney.^  A  plaintiff,  by  accepting 
the  oflBce  of  assignee,  dissolves  the  attachment  made  by  him- 
self as  creditor.- 

§  683.  When  made. —  There. can  be  no  motion  to  quash  till 
appearance  in  the  cause,  either  general  or  special  —  a  matter 
of  course.  There  can  be  none  for  patent  errors  after  issue 
joined  upon  the  merits  under  the  practice  in  several  states.^ 
This  practice,  however,  is  not  universal.*  But  the  defendant 
does  not  waive  his  traverse  of  the  plaintiff's  affidavit  by  plead- 
ing to  the  merits  of  the  main  action;  the  two  defenses  are 
not  inconsistent:  the  former  going  to  the  writ  and  the  latter 
to  the  declaration.* 

To  illustrate:  In  a  suit  against  a  non-resident,  after  the  at- 
tachment had  been  dismissed  and  there  was  therefore  no  juris- 
diction over  the  personal  case,  the  plaintiff  dismissed  the  latter 
(dead  already)  and  then  appealed  from  the  decision  dissolving 
his  attachment.  The  appeal  was  sustained.^  The  nominally 
personal  suit  for  the  debt  ought  not  to  have  been  dismissed. 
It  was  no  impediment  to  appealing,  for  the  case  was  in  reniy 
and  the  dissolution  of  the  attachment  was  the  final  end  of  the 
whole  case,  if  not  appealed.     "When  the  decision  had  been  re- 

1  Benson  v.  Carr,  73  Me.  76.  v.  Matthews,  3  Mich.    18;    Dunn  v. 

2  Ryhiner  v.  Ruegger,  19  111.  App.     Crocker,  22  Ind.  324. 

156.  *  Parsons  v.  Sprague,  65  How.  Pr» 

3Vaughanu  Dawes  (Mont.),  17  P.  151;  Binns  v.  Williams,  4  McLean, 

114;  Magee  v.  Fogerty,  6  Mont.  237;  580;  Thompson  v.  Culver,  38  Barb. 

Fairfield  v.  Madison  Manuf.  Co.,  38  442;  Zeregal  v.  Benoist,  33  How.  Pr. 

Wis.   346;  Woodruff  v.  Sanders,  18  129;  Bowen  v.  Bank  of  Medina,  34 


id.  161;  Burtr.  Parish,  9  Ala.  211 
Enders  v.  Steamer,  8  Rob.  (La.)  30 
McDonald  v.  Fist,  60  Mo.  172 
Synions  v.  Northern,  4  Jones,  241 
Myers    v.    Perry,    1   La.    Ann.    372 


id.  408,     {See  Spencer  v,  Rogers  Lo- 
comotive Works,  13  Abb.   Pr.   180; 
Whiteside  v.  Oakman,  1  Dall.   294; 
Jarvis  v.  Barrett,  14  Wis.  591.) 
5  Parker  v.  Brady,  56  Ga.  372. 


Brinegar  v.  Griffin,  2  id.  154;  Ealer  ^  Rogers  r.  Burbridge  (Tex.  App.), 

V.  McAllister,  14  id.  821;    Reynolds  24  S.  W.  300;   Gulf,  etc.   R   Co.  v. 

V.  Simpkins,  67  Ala.  378;  Steamboat  Ft.  Worth,  etc.  R.   Co.,  68  Tex.  98. 

Farmer  v.  McCraw,  31  id.  659 ;  Porter  On  the  point  of  no  jurisdiction  after 

V,  Pico,  55  Cal.  165;  Grey  v.  Young,  the  dismissal:    Mayes  v.   Jones,   61J 

Harp.  (S.  C.)38;  Spauldingu.  Simms,  Tex.  365;  Low  v.  Felton,  84  id.  378; 

4  Met.  (Ky.)  285 ;  Gallender  v.  Dun-  York  v.  State,  73  id.  65. 
can,  2  Bailey  (S.   C),  454;    Paddock 


§§  6S4:,  6S5.]       PROCEEDINGS    TO   VACATE  —  IN    GENERAL.  471 

versed  and  the  case  sent  down,  Avhat  was  there  for  the  lower 
court  to  try?     Attachment  without  a  claim  is  nothing. 

The  motion  ought  to  be  made  at  the  first  term  of  court  after 
the  defendant's  appearance/  though  this  rule  is  not  invariable.^ 
Attachment  may  be  dissolved  in  chambers.^  After  traverse 
it  is  too  late  to  move  to  quash  for  patent  errors.* 

§  6S4.  Hequisites. —  The  application  should  be  certain  with 
regard  to  the  property  sought  to  be  released.  Such  certainty 
would  not  require  a  full  description  of  the  property  attached 
when  the  motion  is  made  in  the  attachment  suit,  and  when 
reference  to  it  would  necessarily  be  understood ;  but  if  there 
is  a  separate  proceeding  for  dissolution  (as  authorized  under 
some  circumstances),  there  should  be  an  unmistakable  descrip- 
tion of  the  property.^  The  applicant  should  allege  his  owner- 
ship or  right  of  possession.^  The  issue  should  be  regularly 
joined.''  The  motion  should  bear  the  title  of  the  suit  in  which 
it  is  made;  but  that  has  been  held  unnecessar\^  when  there 
is  an  application  for  dissolution  in  a  separate  proceeding,®  In 
the  latter  case  the  application  should  be  verified  by  oath.^ 

§  685.  The  most  important  requisite  (without  which  the  mo- 
tion or  application  would  be  futile)  is  the  assignment  of  the 
reasons  for  quashing.^"  The  irregularities  apparent  on  the 
face  of  the  proceedings  should  be  specified. ^^  They  are  usu- 
ally defects  in  the  petition,  the  service,  the  affidavit,  the  bond, 

ilrvinu.  Howard,  37  Ga.  18;Neal  But  see  Dunlap  v.  Dillard,   77  Va. 

V.  Bookout,  30  id.  40 ;  Hall  v.  Brazel-  847. 

ton,  40  Ala.  406 ;  Lawrence  v.  Jones,  ^  Rice  v.  Hauptman,  2  Colo.  App. 

15  Abb.   Pr.   110;  Sweezey  v.  Bart-  565. 

lett,  3  Abb.  Pr.   (N.  S.)  444;  Milten-  &  As  in  Michigan,  before  a  circuit 

berger  i\  Lloyd,  2  Dall.  79.  court    commissioner.     Patterson  v. 

2Tarbell  v.    Bradley,  27  Vt.   535;  Goodrich,  31  Mich,   225;   Nelson  v. 

Wilson  V.  Louis  Cook  Manuf.  Co.,  88  Hyde,  10  id.  521. 

N.   C.    5;    Penman    v.    Gardner,   4  6  Johnson  v.  De  Witt,  36  Mich.  95 ; 

Yeates,  6;  Kearney  v.  McCullough,  Patterson  v.  Goodrich,  31  id.  225, 

5   Binn.    389.      In    Tennessee,   held  ^  stringer  v.  Dean,  61  Mich.   196; 

that  it  must  be  made  within  twelve  Boyce  v.  Foot,  25  S.  C.  467. 

months.      Bledsoe     v.    Wright,    58  ^  Heyn  v.  Farrar,  36  Mich.  258. 

Tenn.  471.     A  motion  to  set  aside  9  Osborne  v.  Robbins,  10  Mich.  277. 

the  writ  on  patent  errors  has  been  i"  Osborne  u.  Robbins,  10  Mich.  277; 

entertained  before  the  levy.     First  Freeborn  v.  Glazer,  10  Cal.  337, 

N.  Bank  v.  Randall,  38  Minn.  382.  n  Windt  r.  Banniza,  2  Wash.  147: 

3Swearingen  v.  Howser,  37  Kan.  Rothschild  v.  Mooney,  59  Hun,  622; 

126;  Yoakman  v.  Howser,   id.    130.  Kahle  v.  Muller,  57  id.  144. 


472  ATTACHMENT   PROCEEDINGS    IN    COURT.       [§§  G86,   GST. 

the   writ,  the  lev}^  the  return,  or  the  publication.     The  mo- 
tion, of  course,  must  be  within  the  statute.^ 

It  is  not  always  necessary  that  special  notice  should  be  given 
to  the  plaintiff  of  a  motion  to  dissolve.^  He  is  constructively 
in  court,  if  not  actually  present,  and  is,  under  the  practice  ex- 
tensively prevailing,  presumed  to  know  what  is  done  in  the 
cause  he  has  instituted.  But  when  the  defendant  has  taken  a 
rule  on.  the  plaintiff  to  show  cause  why  attachment  should 
not  be  quashed  on  the  grounds  assigned,  the  rule  must  be 
served.  For  some  purposes,  such  as  the  release  of  exempt 
property,  notice  is  indispensable.^ 

Y.  Quashing  for  Errors    Patent. 

§  6S6.  "When  the  attachment  proceeding  is  radically  defect- 
ive upon  its  face,  and  when  the  writ  has  been  unwarrantably 
issued,  the  proper  remedy,  and  the  one  employed  in  most  of 
the  states,  is  the  motion  to  quash  for  the  errors  thus  apparent.^ 
There  are,  however,  in  some  states,  other  means  than  this 
method  of  procedure,  when  the  attachment  has  been  illegally 
issued  or  is  defective.^ 

§687.  Defects  of  the  lyersonal  suit. —  "When  the  personal 
suit  is  radicalh'  defective,  or  not  such  as  to  form  the  basis  of 
an  attachment  according  to   statute  provisions,  the  ancillary 

iMagee  v.   Fogarty.  6  Mont.  237;  v.    Bowie,    3  Md.    334;  Gasherie  v. 

Wallace  r.  Lewis,  9  id.  399.  Apple,   14  Abb.   Pr.  64;    Brewer  v. 

2  See  Whitfield  v.  Hovey,  30  S.  C.  Tucker,  13  id.  76;  Dickinson  v.  Ben- 
117.  ham,  12  id,    158;  Morgan  v.  Aver\', 

3  Claflin  V.  Lisso,  31  La.  Ann.  171.  7   Barb.    656    (but     see   Boscher    v. 

4  Anderson  r.  Johnson,  32  Gratt.  Roullier.  4  Abb.  Pr.  396);  Hill  v. 
558;  Harrison  v.  King,  9  Ohio  St.  Bond.  22  How.  Pr.  272;  Baldwin  r. 
388;  Cooper  v.  Reeves,  13  Ind.  53;  Cooper,  17  Miss.  516;  Rice  t;.  Thorn- 
Pittman  v.  Searcey,  8  la.  352 ;  Hoi-  ton,  69  Ala.  473 ;  Jordan  v.  Hazard, 
loway  r.  Herryford,  9  id.  353 ;  Bower  10  id.  221;  Calhoun  v.  Cozzens,  3 
V.  Town,  12  Mich.  230;  Coward  r.  id.  21;  Peru  Plow  Co.  v.  Benedict, 
Dillinger,  56  Md.  59;  Harper  v.  24  Neb.  340;  Steel  u.  Goodwyn,  113 
Scuddy,  1  McMull.  (S.  C.)  264;  Read  Pa.  St.  288. 

f.  Ware,  2  La.  Ann.  498 ;  Slark  v.  5  Meuse  v.  Osbern,  5  Mo.  554 ;  Jor- 

Broom,  7  id.  337;  Kendall  u.  Brown,  dan  v.  Hazard,  10  Ala.  221;  Gill  v. 

id.  668;  Bonner  v.  Brown,  10  id.  334:  Downs,    26   id.    670;    Evans   v.  An- 

Hill    V,    Cunningham,    25  Tex,    25;  drews,  7  Jones' (N.  C.)  L.  117;  Cheny 

Wright  V.   Smith,  19  id.  297;  Mess-  v.  Nelson,  id.  141;  Reiss  v.  Brady,  3 

ner  v.  Lewis,  20  id.   221 ;  Espey  r.  Cal.  133. 
Heidenheimer,  58  id.  662 ;  Lambden 


§  687.]  QUASHING  FOR  EKRORS  PATENT.  473 

proceeding  must  fall  with  it.'  Of  course,  should  an  exception 
or  demurrer  to  such  principal  action  be  successfully  pleaded, 
the  subsidiary  proceeding  would  be  at  an  end,  without  any 
occasion  for  a  motion  to  quash  it.  Still,  in  case  the  defend- 
ant has  made  only  a  special  appearance,  and  prefers  the  motion 
to  quash  upon  assigning  patent  errors,  rather  than  pleading 
in  the  principal  action,  he  may,  under  such  motion,  set  up 
that  the  attachment  was  not  sued  out  under  such  suit  as  tlie 
statute  requires  as  a  foundation  for  attachment.  If,  for  in- 
stance, the  suit  is  on  a  bill  of  exchange,  and  it  appears  by  the 
petition  itself  that  the  plaintiff's  title  to  the  bill  was  not  com- 
plete w^hen  the  suit  was  instituted,  attachment  thereunder 
may  be  quashed  upon  such  motion.-  If  the  cause  of  action  is 
founded  on  a  sealed  instrument  yet  the  declaration  is  in  tres- 
pass on  the  case,  attachment  sued  out  under  such  suit,  being 
without  statute  authorization,  may  be  quashed  in  like  manner.^ 
So,  also,  if  attachment  has  been  sued  out  in  any  suit  in  which 
this  remedy  is  not  authorized  by  statute.*  Courts  may  inquire 
into  the  allegations  of  the  principal  action  when  hearing  a 
motion  to  dissolve  attachment;^  but  the  debt  cannot  be  sum- 
maril}'^  disproved  for  the  purpose  of  having  the  attachment 
dissolved.^  If  the  debt  is  admitted  in  part,  the  plaintiff  is  en- 
titled to  judgment  to  that  extent,  though  the  defendant  trav- 
erse the  affidavit.'  The  increase  of  the  amount  of  the  debt 
claimed,  after  the  attachment  has  been  laid,  was  held  not  a 
ground  for  dissolution,  when  onl}''  the  original  sum  was 
claimed  on  execution,  though  a  second  attacher  had  inter- 
vened.^ That  the  debt  was  not  due  when  the  action  was 
begun  was  held  no  ground  for  dissolution,  in  a  state  which 
requires  that  the   institution  of  the  action  must  precede  at- 

1  Meyer  v.    Evans,    21    Neb.    367;  Hamilton  v.   Johnson,  32  Neb.  730; 

Quinland  v.   Danford,  28  Kan.  507.  Lowenstein  v.  Salinger,  62  Hun,  632; 

-  Blanchard  v.  Grousset,  1  La.  Ann.  Horton  v.  Miller,  84  Ala.  537 ;  Brown 

96;  Steel  r.  Raphael,  59  Hun,  626.  v.   Wigton,  63  Hun,   633;  Tuller  v. 

3  Ten  Brock  v.  Pendleton,  5  Cranch  Arnold,  93  Cal.  166. 

C.  C.  464.  6  Fisher  v.  Hood,  2   Martin  (La.), 

*  Stone    V.    Boone,    24    Kan.   337;  113;   Sterns  Paper  Co.   v.   Johnson, 

Paddle  v.  Black,  99  Pa.  St.  380;  El-  63  Hun,  633. 

liott  V.  Jackson,  3  Wis.   649 ;  Gris-  '^  Eureka  Co.  v.  Sloteuian,  67  Wis. 

wold  V.  Sharpe,  2  Cal.  17 ;  Clark  v.  118. 

Montfort,  37  Kan.  756.  8  Cutler  v.  Lang,  30  Fed.  173.' 

^Bundrem  v.  Denn,  25  Kan.  430; 


474  ATTACHMENT    PROCEEDINGS    IN    COURT.       [§§  688,  C89. 

tachment.^  But  if  the  right  to  sue  on  a  debt  not  due  is  de- 
rived from  the  attachment  statute  only,  and  is  dependent 
upon  the  legality  of  the  attachment,  the  dissolution  ends  the 
case ;  the  personal  suit  cannot  go  on.^  So,  if  the  suit  is  against  a 
non-resident  for  debt  not  due,  and  is  dependent  upon  the  at- 
tachment, it  must  be  dismissed  if  the  attachment  be  dissolved.* 
A  motion  to  quash  may  be  granted  on  the  disclaimer  of  the 
plaintiff's  attorney.* 

§  688.  Summons. —  The  summons  should  be  such  as  to  give 
the  debtor  the  information  necessary  to  put  him  upon  in- 
quiry; should  communicate  to  him  knowledge  of  the  institu- 
tion of  the  suit,  of  the  court  in  which  it  is  instituted,  and  the 
essentials  tending  to  put  him  upon  his  defense.  When  a  copy 
of  the  petition  accompanies  the  summons,  he  is,  by  means  of 
that,  enabled  to  understand  the  creditor's  demand.  Forms  of 
summons  differ,  but  the  essentials  are  nearly  the  same  every- 
where. If  the  summons  is  misleading,  especially  if  it  has 
misled  the  defendant,  its  defects  may  constitute  good  ground 
for  quashing  an  attachment. 

If  the  summons  and  writ  are  regular  in  form  they  must  be 
served  by  the  proper  officer,  since  service  by  another  has  been 
held  ground  for  vacating  attachment.*  The  defendant  must 
be  served  at  the  proper  time:  an  attachment  may  be  dissolved 
because  it  has  been  served  on  the  defendant  when  service 
could  not  legally  be  made.^ 

§  689.  Affidavit —  Total  absence  of  affidavit,  or  of  one  set- 
ting forth  the  required  statute  facts,  is  a  perfect  reason  for 
setting  aside  an  attachment.''  The  defect  in  such  case  is 
jurisdictional,  and  the  judge  should  discontinue  proceedings 
upon  his  own  motion,  so  far  as  the  ancillary  suit  is  concerned, 
if  the  defendant  does  not  move  to  dismiss.     If  the  requisitions 

1  Reed  V.  Maben,  21  Neb.  696,  ^Betzemann  v.  Brooks,  31   Hun, 

2  Voorhies  v.  Michaelis,  45  Kan.  271 ;  McFerran  v.  Wherry,  5  Cranch 
255.  C.   C.   677;  Cossitt   v.   Winchell,  39 

sWingo  V.  Purdy,  87  Va.  472;  Va.  Hun,  439. 

Code,  §  2964.     The  case  was  an  at-  "^  Lowry  v.  Stowe,  7  Port.  483 ;  El- 

tachment  suit  in  equity.     Moore  v.  lison  v.  Mounts,  12  Ala.  472 ;  Kirk- 

Corley  (Tex.),  16  S.  W.  787.  man   v.  Patton,  19  id.  32;  Erwin  v. 

4Keuhn  ??.  Paroni,  20  Nev.  203.  Commercial   Bank,  3  La.  Ann.  186; 

5  Lawrence  v.  Featherston,  18  Miss.  First  N.  Bank  v.  Swan  (Wyo.),  23  P. 

345.  743. 


§  G90.]  QUASHING  FOR  EKEORS  PATENT.  475 

of  the  statute  are  not  substantially  observed  with  regard  to 
the  affidavit,  the  proceedings  under  it  are  void,  and  the  at- 
tachment may  be  quashed  on  motion.^  Failure  to  include  in 
the  affidavit  the  averment  "  that  the  attachment  is  not  sued 
out  for  the  purpose  of  vexing  or  harassing  the  defendant "  is 
ground  for  dissolution,  where  such  averment  is  a  statutory 
requisite.-  So,  when  the  statute  required  that  oath  by  an  at- 
torney against  his  client's  non-resident  debtor  should  be  posi- 
tive in  the  allegation  of  non-residence,  his  affidavit  that  he 
was  "informed  and  believed"  was  insufficient,''  though  stat- 
utes are  not  all  so  exacting  with  respect  to  all  deponents.^ 
So,  for  serious  variance  between  the  affidavit  and  complaint;^ 
but  not  for  immaterial  variance.® 

§  690.  Attachments  have  frequently  been  quashed  because 
of  alternation  in  the  statement  of  the  grounds  for  the  writ;^ 
but  much  depends  upon  the  nature  of  the  alternation,  and 
many  affidavits  are  perfectly  good  notwithstanding  the  dis- 
junction of  the  grounds,  as  was  shown  in  the  fourth  chapter.^ 
Uncertaint}^,  however,  is  good  ground  for  the  motion  to  dis- 
solve; even  though  the  allegations  be  clearly  stated  in  the 
affidavit,  if  the  averments  of  the  petition  render  the  plaintiff's 
statements  ambiguous  as  a  whole,  the  attachment  ma}''  be 
quashed.^  A  verified  petition  may  eke  out  an  affidavit  and 
render  the  plaintiff's  meaning  certain.^*^  And  the  plaintiff  has 
been  allowed  to  amend  his  affidavit  while  a  motion  to  vacate 
was  pending.^^ 

The  truth  of  the  affidavit  is  not  brought  into  question  by  a 
rule  to  quash  for  patent  errors.^-    It  may  be  read  by  the  plaint- 

1  Clark  V.  Roberts,  1  111.  222;  Cow-  8  gee  authorities  therein,  §§  135, 
ard  V.  Dillinger,  56  ]Md.  59.  137. 

2  Saunders  v.   Cavett,  88  Ala.  51 ;        9  Marshall  v.  Alley,  25  Tex.  342. 
Moody  V.  Levy,  58  Tex.  532.  lo  Chittenden  v.  Hobbs,  9  la.  417. 

3  Deupree  v.  Eisenach,  9  Ga.  598.  n  Kibbe  v.  Wetmore,  31  Hun,  424. 
*  McNamara  v.  Ellis,  14  Ind.  516.  See  chapter  on  Affidavit,  section  on 
5  Horton  v.  Miller,  84  Ala.  537.  Amendment. 

^Perkerson  v.  Snodgrass,  85  Ala.  i^g^ai-cy  ^  Platte  County,  10  Mo. 

137.  269 ;  Haris  v.  Trapp,  2  Nott  &  Mc- 

7  Stacy  r.  Stichton,  9  la.  399;  Jewel  Cord  (S.  C),  130;  Paul  v.  Ward,  21 

V.  Howe,  3  Watts  (Pa.),  144;  Wray  Ind.  211. 
r.  Gilmore,  1  Miles  (Pa.),  75 ;  Allen  v. 
Fleming,  14  Rich.  (S.  C.)  196. 


476  ATTACHMENT  PEOCEEDINGS  IN  COURT.        [§  ^^^• 

iff  on  a  motion  by  the  defendant  to  vacate  on  the  papers.^ 
He  cannot  offer  new  affidavits.^ 

A  slight  error  or  a  little  dela_y  by  the  clerk  in  filing  an 
affidavit  duly  made  is  not  good  ground  for  vacating  an  at- 
tachment, though  it  may  have  been  levied  before  the  filing.* 

§  691.  Attachment  Tjoncl. —  In  the  chapter  on  the  attachment 
bond  the  necessity  of  complying  with  the  requirements  of  stat- 
utes with  respect  to  it  was  sufficienth^  set  forth.  The  failure 
of  the  plaintiff  to  comply  is  proper  ground  for  dissolving  an 
attachment.*  Though  the  plaintiff  may  have  signed  a  blank 
bond,  failure  to  have  it  filled  and  filed  leaves  him  in  the  same 
plight  as  though  he  had  done  nothing  towards  compliance 
with  the  requirement.^  Even  when  he  had  executed  a  bond 
on  the  day  the  writ  was  issued,  it  is  held  (perhaps  too  strin- 
gently) that  the  attachment  should  be  quashed  on  motion, 
because  it  antedated  the  bond.^  In  such  case  ithas  other- 
wise been  held  that  the  proper  remedy  is  a  plea  in  abatement 
and  not  a  motion  to  quash."^  So  also  when  there  is  a  variance 
between  the  bond  and  the  writ.^  If  the  bond  and  writ  bear 
equal  date,  the  attachment  should  be  sustained.* 

Though  a  bond  mav  be  executed  and  filed  before  the  issu- 
ance  of  the  writ,  if  it  is  fatally  defective,  the  attachment  may 
be  dissolved,^"  unless  the  plaintiff  has  the  right  to  amend  and 
proceeds  to  do  so.^^ 

1  Haebler  v.   Bernharth,  58  N.  Y.  Bray,  3  Cal.  251 ;  Hisler  v.  Carr,  U 

Superior,  165.  id.  641. 

2Appleton  V.  Speer,  57  N.  Y.  Su-  5  Boyd  v.  Boyd,  2  Nott  &  McCord 

perior,  119.  (S.  C),  125. 

3  Hughes  V.  Stinnett,  9  Ark.  211;  ^Hucherson  v.  Ross,  2  A.  K.  Mar- 
Wright    V.    Ragland,    18    Tex.    289;  shall  (Ky.),  349. 
Bank  of  Augusta  v.  Conrey,  28  Miss.  '^  Didier  v.   Galloway,  3  Ark.  501. 
667;  Wheeler  v.  Slavens,  21  id.  623;  8  Goldsticker  v.   Stetson,   21  Ala. 
Brash  v.  Wielarsky,  36  How.  Pr.  253.  404. 

*  Erwin  1'.  Commercial  Bank,  3  La.  ^McKenzie  v.  Buchan,  1  Nott  & 

Ann.  186;  Ford  v.  Hard,  4  S.  &  M.  McCord  (S.  C),  205. 

683;  Tiffany  v.  Lord,  65  N.  Y.  310:  W  Root  v.  Monroe,  5  Blackf.  (Ind.) 

Van  Loon  v.  Lyons,  61  id.  22;  Davis  594;  Budsong  v.  Sledge,  8  Ga.  521; 

V.   Marshall,   14  Barb.   96;  Kelly  v.  Work  v.  Titus,  12 Fla.  628,  Gallagher 

Archer,  48  id.  68;  Bank  of  Alabama  v.  Coggswell,  11  id.  127;  Homan  v. 

V.  Fitzpatrick,  4  Humph.  311-  Stev-  Brinckerhoff,  1  Denio  (N.   Y.),  184; 

enson  u.  Robbins,  5  Mo.  18;  Kellogg  Rochefeller  v.   Hoysradt,  2  Hill  (N. 

V.    Miller,    6   Ark.    468;  Osborne  v.  Y.),  616. 

Schiflfer,   37  Tex.  434;    Benedict  v.  "  Conklin   v.    Harris,    5  Ala.    213; 


§§  092,  693.]     QUASHIKG  FOE  ERRORS  PATENT. 


477 


§  692.  Such  defects  in  bonds,  their  execution,  filing,  etc.,  or 
omissions  of  proper  sureties  thereto,  constitute  good  grounds 
for  quashing.  Thus,  if  the  bond  is  not  given  by  the  plaintiff,^ 
or  by  his  agent  or  attorney  when,  expressly  or  impliedly,  the 
law  allows  such  representative  of  the  plaintiff  to  execute  the 
bond,  but  is  made  and  signed  by  a  stranger,  the  attachment 
may  be  quashed  for  lack  of  bond.  So  also  if  the  suret}^  or 
sureties  are  shown  to  be  not  such  as  the  law  requires  with  re- 
spect to  their  number,  residence,  solvency,  ability  to  pay,  etc.' 
So  also  if  the  amount  of  the  obligation  is  not  as  great  as  the 
statute  requires.^ 

§  693.  The  court  cannot  look  beyond  the  face  of  the  bond 
itself  upon  a  motion  to  quash  for  insufficiency  as  to  the  amount, 
number  of  sureties,  form  of  the  obligation,  etc.,  where  evi- 
dence aliunde  is  not  allowed  by  the  attachment  statute  or 
practice  in  the  state.* 

Bond  defects  which  are  apparent  are  met  by  motion  to 
quash ;  those  alleged  to  be  proved  are  met  b}''  plea.^  The  time 
to  object  to  apparent  defects  is  before  answering  to  the  merits,^ 


Jackson  v.  Stanley,  2  id.  326; 
Planters'  &  Merchants'  Bank  v. 
Andrews,  8  Porter  (Ala.).  404;  Lowe 
V,  Derrick,  9  id.  415:  Oliver  v.  Wil- 
son, 29  Ga.  642 :  Irvin  v.  Howard,  37 
id.  18;  Tevis  V.  Hughes,  10  Mo.  380; 
Wood  V.  Squires,  28  id.  528 ;  Beards- 
ley  V.  Morgan,  29  id,  471 ;  Henderson 
V.  Drace,  30  id.  358;  Jasper  Co.  v. 
Chenault,  38  id.  357;  McDonald  v. 
Fist,  53  id.  343;  Lee  v.  Vail,  3  III. 
473 ;  Cummings  v.  Denny,  6  Mo.  App. 
602,  In  this  last  case  it  was  held 
that  an  attachment  suit  should  not 
be  dismissed  for  insufficient  bond  till 
opportunity  for  filing  another  has 
been  given. 

1  Jones  V.  Anderson,  7  Leigh,  308 ; 
Ford  V.  Hurd,  12  Miss.  683;  Myers  v. 
Lewis,  1  McMulIen,  54;  Mantz  v. 
Hendley,  2  Hen.  &  Mun.  308. 

2McCook  V.  Willis,  28  La.  Ann. 
448  (one  surety  non-resident) ;  Jack- 
son V.  Stanley,  2  Ala.  326 ;  Lokett  v. 
Neufville,  55  Ga.  454. 


3  Brown  v.  Whiteford,  4  Rich.  327; 
Young  •?;.  Gray,  Harper,  38;  Marnine 
V.  Murphy,  8  Ind.  272;  Martin  v. 
Thompson,  3  Bibb,  252;  Williams  v. 
Barrow,  3  La.  57;  Pope  v.  Hunter,  13 
id.  306;  Jackson  v.  Warwick,  17  id. 
436;  Graham  v.  Burckhalter,  2  La. 
Ann.  415;  Fellows  v.  Dickens,  5  id. 
131 :  Starr  v.  Lyon,  5  Ct.  538 ;  Davis 
V.  Marshall,  14  Barb.  96:  Gallagher 
v.  Cogswell,  11  Fla,  127;  Benedict  v. 
Bray,  2  Cal.  251 ;  Saulter  v.  Butler, 
10  Ga.  510;  Thompson  v.  Arthur, 
Dudley,  253;  Briggs  v.  Smith,  13 
Tex.  269. 

4  Spear  v.  King,  14  Miss.  276. 

5  City  N.  Bank  v.  Cupp,  59  Tex. 
268. 

6  Hart  V.  Kanady,  33  Tex.  720; 
Carr  v.  Coopwood,  24  Miss.  256 ; 
Beecher  v.  James,  3  111.  462;  Mem- 
phis R.  Co.  V.  Wilcox,  48  Pa.  St. 
161 ;  Judah  v.  Duncan,  2  Bailey,  454. 


4TS  ATTACHMENT    PROCEEDINGS    IN    COURT.       [§§  694,  095. 

And  objection  to  any  defects  should  be  in  the  trial  court,  as 
they  cannot  be  first  raised  in  the  appellate  court.^ 

§  694.  Where  the  bond  is  not  fatally  defective,  but  is  such 
as  to  protect  the  defendant,  and  is  in  substantial  compliance 
with  the  statute  requiring  it,  and  is  amendable,  courts  will 
not  because  of  its  defects  dissolve  the  attachment  upon  mo- 
tion.^ jSTor  will  they  dissolve  it  because  of  harmless  surplus- 
age written  in  the  bond;'  nor  for  want  of  a  seal  where  the 
statute  does  not  make  it  essential.'' 

§  695.  Writ. —  In  a  proceeding  against  a  thing  as  the  prop- 
erty  of  a^  particular  person  who  is  already  personall}''  charged 
with  indebtedness,  with  the  purpose  of  rendering  it  indebted 
by  creating  a  lien  upon  it,  there  must  be  a  writ  or  warrant 
issued  to  the  officer,  commanding  him  to  seize  any  property 
of  that  particular  person.  An  attachment  depends,  therefore, 
upon  the  writ.  Without  a  writ  it  may  be  quashed  on  motion, 
since  no  one  can  lawfully  attach  property  under  the  attach- 
ment statutes  without  a  judicial  order  to  do  so.  Anybod}^ 
may  seize  preliminarily  to  the  libel  of  goods  or  other  prop- 
erty, on  the  ground  of  forfeiture,  to  have  the  status  judicially 
declared,  but  only  an  officer  duly  authorized  by  a  mandate  of 
court  can  seize  a  debtor's  property  at  the  suit  of  a  creditor  to 
have  a  lien  put  on  it  and  enforced.  An  attachment  may  be 
quashed  if  it  appears  from  the  record  that  there  was  no  writ, 
or  no  writ  issued  by  the  court  directly  or  through  its  minister, 
the  clerk;  if  there  was  a  writ  which  was  not  in  compliance 
with  the  statute;  if,  though  the  attachment  statute  may  not 
have  been  violated  so  far  as  it  literally  requires  a  writ,  there 
has  been  a  violation  of  its  spirit;  if,  though  the  statute  men- 
tions nothing  of  a  writ,  the  attachment  has   been  executed 

1  Morris  v.  Trustees,  15  111.  266;  368:  O'Neal  v.  Owens,  1  Haywood 
Miere  r.  Brush,  4  id.  21;  Bretney  v.  (N.  C),  362;  Frankel  v.  Stern,  44 
Jones,  1  Greene,  336.  Cal.  168. 

2  Ambach  v.  Armstrong,  29  W.  Va.  3  Shockley  v.  Davis,  17  Ga.  175 ; 
744 ;  Knox  v.  Atterburg,  3  Dana  Kalm  v.  Herman,  3  id.  266 ;  Bourne 
(Ky.),  580;  Smith  v.  Pearce,  6  Munf.  v.  Hocker,  11  B.  Mon.  21 ;  Steamboat 
(Va.)  505;  Plumpton  v.  Cook,  2  Napoleon  r.  Etter,  6  Ark.  103;  Fel- 
A.  K.  Marshall  (Ky.),  450;  Leach  u.  lows  t'.  Miller,  8  Blackf.  231;  Ran- 
Thomas,  2  Nott  &  McCord  (S.  C),  niug  v.  Reeves,  2  Tenn.  Ch.  263. 
110;  Howard  v.  Oppenheimer,  25  ^  Gasquet  u.  Collins,  57  Tex.  3l0. 
Md.  350;  Dean  v.  Oppenheimer,  id. 


§  696.]  QUASHING  FOK  EKROKS  PATENT.  4Y9 

without  one;  if  the  writ  itself  was  deficient  —  failing  to  give 
full  authority  to  the  officer  to  attach;  if  it  was  fatally  de- 
fective in  form ;  if  it  was  illegally  issued  —  on  Sunday  —  on  a 
legal  holida}'^  —  at  some  time  not  allowed  b}''  law;  if  it  was 
not  properly  signed  by  the  judge  or  clerk,  when  that  is  im- 
perative; and  if  not  properly  sealed,  when  a  seal  is  rendered 
indispensable  by  the  statute.  In  brief,  it  may  be  said  that  an. 
attachment  may  be  quashed  or  vacated,  either  for  fatal  de- 
fects in  the  matter  or  form  of  the  writ  itself  or  for  irregu- 
larities in  its  issue,  appearing  of  record.^ 

To  take  advantage  of  a  defective  execution  of  the  writ  and 
make  it  the  reason  for  quashing,  the  defendant  must  find  evi- 
dence of  it  in  the  return.  However  erroneous  the  sheriff's 
course  may  have  been  when  attaching  property  of  the  defend- 
ant, only  what  the  record  shows  to  have  been  irregular  and 
erroneous  can  be  properly  assigned  as  ground  for  the  motion 
to  set  the  attachment  aside  for  patent  errors. 

§  696.  Levy. —  If  it  appears  from  the  return  that  no  prop- 
erty has  been  attached,  or  validly  attached,  the  suit  is  at  an 
end  so  far  as  it  is  against  property  (or  rather  has  never  fully 
come  into  being),  and  the  court  is  without  jurisdiction  over 
the  property  of  the  personal  debtor.^  Dissolution  may  be 
ordered  by  the  proper  court  because  the  attachment  was 
issued  by  a  probate  court  without  jurisdiction.^ 

If  the  return  gives  no  description  of  property  sufficient  to 
identify  it,  and  it  is  so  situated  that  the  possession  of  it  by  the 

iMansur  v.    Coffin,    54   Me.    314;  Hopkinton,    29  id.    268;    Askew  v. 

Coward  v.  Dillinger,  56  Md.  59 :  Rey-  Stevenson,    Phill.    (N.    C.)    L.    181 

nolds  V.  Damrell,  19  N.  H.  394;  Pat-  Smith  v.  Hackley,  44  Mo.  App.  614 

rick  V.  Solinger,  9  Daly  (N.  Y.),  149;  Dean  v.  Garnet,  1  Duv.  (Ky.)  408 

Park  V.  Haniron,  14  Vt.  211;   Paine  Bourine  v.  Hocker,  11    B.  Mon.  23 

V.  Tilden,  20  id.  554;  Nordlinger  v.  Greenvaultr.  F.  &  M.  Bank,  2  Doug. 

Gordon,  72  Ala.  239 ;  Curry  v.  Wood-  (Mich.)  498 ;  Philpott  v.  Newman,  11 

ward,  50  id.  258;  Woodlyu  Shirley,  Neb.    299;  Blair  v.    Shew,   24  Kan. 

Minor  (Ala.),  14;  O'Farrell  v.  Heard,  280. 

23  Minn.  189 ;  Musgrave  v.  Brady,  1  -  Rose  v.  Whaley,  14  La.  Ann.  374 

Morr.  (Iowa),  456;  Barber  u.  Swan,  4  Williams  v.  Skipwith,  34  Ark.  529 

Greene  (Iowa),  352 ;  Hagan  v.  Burch,  Reynolds   v.  Horn,  4  La.  Ann.  187 

8  Iowa,  309;  Byrd   v.    Hopkins,  16  Clay   v.  Neilson,   5  Rand.  (Va.)  596 

Miss.  441;  Hanson  v.  Dow,  51   Me.  Seers  v.  Blakesly,  1    Root  (Ct.),  54 

165;  Neally  v.  Judkins,  48  id.  410;  Embra  f .  Silliman,  id.  128. 

Osgood  V.  Holyoke,  id.  410;  Saco  v.  ^Buck  v.  Panabaker,  32  Kan.  466. 


4S0  A.TTACHMENT   PKOCEEUINGS    IN    COURT.       [§§  697-699. 

sheriff  is  not  suflBcient  to  distinguish  it  from  other  property 
not  attached  (as  when  it  is  a  part  of  a  mass,  or  is  intermixed 
with  other  goods,  or  is  not  susceptible  of  manipulation),  the 
attachment  ought  to  be  set  aside  for  want  of  description.  It 
is  no  ground,  however,  when  goods  are  attached  and  held, 
and  kept  separately  so  as  to  be  forthcoming  upon  judgment, 
that  they  are  not  specifically  described.^ 

§  697.  The  essential  requirements  of  the  statute  with  re- 
spect to  the  lev}^  must  be  observed,  and  reported  in  the  return, 
under  pain  of  nullity.  If  posting  at  the  court-house  is  a  stat- 
utory essential,  omission  to  make  an  official  return  that  a  copy 
of  the  attachment  was  there  posted  is  cause  for  quashing  at- 
tachment.^ 

There  is  also  good  cause,  when  there  is  record  evidence  of 
the  violation  of  a  statute  making  a  return  of  the  value  of  at- 
tached propert}'^  essential;  or  the  time  of  attaching;  or  the 
person  served;  or  the  officer  serving;  or  the  publication,  or 
any  other  matter  made  essential.  A  return  by  an  unauthor- 
ized officer  is  not  cause  for  dismissing  the  personal  action.^ 

§  69S.  Disregard  of  statute. —  The  violation  or  neglect  of 
statutory  requirements  may  appear  as  well  b_y  the  omission  of 
any  mention  of  them  as  by  a  statement  in  the  return.  The 
record  shows  what  has  not  been  performed  as  well  as  what 
has  been  done.  Its  silence  with  reference  to  an  essential  act 
in  making  the  le^y  is  sufficient  evidence  of  its  neglect,  so  that 
the  omission  may  be  assigned  as  error  patent  upon  the  record 
and  made  a  ground  for  a  motion  to  quash  the  attachment. 

If,  however,  something  has  been  wrongfully  done,  of  such 
a  character  as  to  vitiate  the  levy,  but  which  does  not  affirm- 
atively appear  of  record  nor  can  be  inferred  therefrom,  such 
as  undue  force  or  violence  in  the  execution,  fraud  or  unlawful 
strategy  in  making  the  seizure,  attaching  beyond  the  bounds 
of  the  court's  jurisdiction,  etc.,  the  defendant's  remedy  is  not 
the  motion  to  quash  for  patent  errors. 

§699.  Amendments. —  In  the  practice  of  several  of  the 
states  amendments  are  allowed,  even  after  a  motion  to  quash 
has  been  filed,  so  as  to  defeat  the  motion.     Both  the  petition 

1  Green  v.  Payne,  1  Ala.  235.  3  Bates  v.  Crow,  57  Miss.  G76. 

2  Wilson  V.  Ray,  T.  U.  P.  Charlt. 
(Ga.)  109. 


§  TOO.]  DISSOLUTION^    ON    EVIDENCE    BEYOND    EECOKD.  481 

and  the  affidavit  are  there  amendable  at  that  stage,  if  they 
are  merely  defective  and  not  wholly  inadmissible.  If  amend- 
able, though  not  yet  amended,  motions  to  quash  have  been 
refused.^  But  this  is  not  the  general  practice;  and  it  may  be 
added  that  nowhere  can  the  absence  of  an  affidavit  be  sup- 
plied, after  rule  to  vacate  attachment  for  the  want  of  one,^ 

It  has  even  been  held  that  an  attachment  suit  should  not  be 
dismissed  on  account  of  the  insufficiency  of  the  bond  without 
first  giving  the  plaintiff  opportunit}^  for  filing  a  new  one,^ 
though  this  seems  contrary  to  the  generally  received  doctrine 
that  a  sufficient  bond,  filed  before  or  simultaneously  with 
the  issuance  of  the  writ,  is  essential  to  the  validity  of  the 
attachment, 

YL   Dissolution  on  Evidence  Beyond  the  Record. 

§700.  Falsity  of  the  affidavit. —  An 'attachment,  regularly 
issued,  legal  on  its  face,  strictly  in  conformity  to  statute,  may 
be  based  on  false  allegations.  The  court  may  have  acted  in 
the  rightful  exercise  of  jurisdiction,  and  the  affidavit  may 
have  presented  such  a  statement  of  facts  with  regard  to  the 
parties,  the  character  of  the  debt  and  the  grounds  for  attach- 
ing, that  the  writ  could  not  have  been  legally  refused,  yet 
there  may  remain  a  good  defense  against  the  suit  to  be  estab- 
lished by  evidence  beyond  the  record.  Especially  is  this  true 
when  the  court,  in  considering  an  application,  is  confined  to 
the  plaintiff's  ex  parte  statements,  and  not  required  or  per- 
mitted to  investigate  his  averments  by  evidence  beyond  the 
affidavit. 

1  Branch  v.  Frank,  81  N.   C.  180;  son   v.   Dace,   30  Mo.   358;    Drew  v. 

Magoon  v.  Gillett,  54  la.  54;  Hath-  Dequindre,  2  Doug.  (Mich.)  93;  Law- 

away  v.  Davis,  33  Cai.  161;  Tarkin-  ton  v.  Keil,   51  Barb.   30;  34  How. 

ton  V.  Broussard,  51  Tex.  550,  and  Pr.  465.     See  Atkins  v.  Womeldorf, 

Pierce  v.  Bell,  21  id.  690,  both  with  53  la.    153;  Murdough  v.   McPher- 

reference  to  the  petition  only  ;  Camp-  rin,   49  id.   479.     Contra:    Marx  v. 

bell  V.  Whetstone,  4  111.  361 ;  Cutter  Abraham,    53  Tex.  264,    as   to  the 

V.    Richardson,     125    Mass.    72    (.see  affidavit. 

Warren  v.  Lord,  131  id.  560;  Knight  -  McReynolds  V.  Neal,  8  Humph. 

V.    Dorr,    19    Pick.    48;     Seeley  v.  (Tenn.)  12. 

Brown,  14  id.  177);  Graves  v.  Cole,  3  Henderson  v.  Drace,  30  Mo.  358; 

1   Greene    (Iowa),    405;    Mendes  v.  Tevis  t?.  Hughes,  10  id.  380;  Kissam 

Freiters,  16  Nev.  388;  Fitzpatrick  v.  v.  Marshall,  10  Abb.  Pr.  424. 
Flannagan,  106  U.  S.  650;  Hender- 
31 


482  ATTACHMENT   PROCEEDINGS    IN   COURT.       [§§  YOl,  702. 

§  701.  Under  such  circumstances,  the  writ,  though  issued 
legally,  is  issued  improvidently.  It  will  hold  good  unless  it  is 
in  some  form  put  at  issue  ;^  but  if,  upon  proper  proceeding,  the 
falsity  of  the  plaintiff's  allegations  or  the  illegality  of  the  pro- 
ceeding is  made  to  appear  by  due  proof,  the  attachment  may 
be  vacated.-  An  affidavit  proved  to  be  false  will  fail  of 
effect;  even  a  judgment  based  upon  it  will  be  reversed  on  cer- 
tiorari; ^  for  attachment  rests  on  its  own  facts  and  not  those 
of  the  personal  suit.'*  It  is  held  that  the  defendant  may  trav- 
erse the  plaintiff's  affidavit  after  having  assigned  to  creditors, 
since  he  is  still  interested  in  having  his  debts  paid.^ 

§  702.  General  appearance  necessary. —  It  requires  a  general 
appearance  to  enable  the  defendant  to  take  action  for  the  dis- 
solution of  attachment  on  grounds  other  than  those  apparent 
upon  the  record.^  After  such  appearance  he  may  assign  such 
grounds  as  that  the  plaintiff  had  obtained  judgment  and  issued 
execution  on  the  same  demand  in  another  state ;  ^  that  another 
suit  on  the  same  cause  of  action  is  pending  between  the  par- 
ties;^ that  a  second  writ  of  attachment  has  been  sued  out  by 
the  plaintiff  against  the  defendant,  on  the  same  demand,  in 
the  same  county ;  ^  that  an  attachment  was  sued  out  by  the 
plaintiff  against  the  defendant,  on  the  same  demand,  in  an- 
other state,  and  has  been  dissolved  by  bonding; ^*^  that  the 
attachment  is  devised  merely  to  defeat  the  demand  of  another 
creditor;^'  and  he  may  traverse  the  affidavit  and  test  its  truth, 
and  urge  any  grounds  against  the  bond,  the  writ,  the  seizure, 
the  non-compliance  with  the  statute  in  an}^  essential  ]  irtic- 
ular.     When  his  plea  or  rule  needs  to  be  verified  upon  oath, 

1  Hornick  Drug  Co.  r.  Lane  (S.  D.),  Sharkey  r.  Williams,  20  Mo.  App. 
45  N.  W.  329 ;  Houston  v.  Woolley,     681. 

37  Mo.  App.  15;  Haseltinef.  Ausher-  ^j^eith  v.  Armstrong,  65  Wis.  225. 

man,  29  id,   451;  Rees  r.  Augustine,  ^  Whiting  v.    Budd,    5  Mo.    443; 

24  id.  673;  Sharkey  v.  Williams,  20  Evans  v.  King,  7  id.  443. 

id.  681;  Breene  v.  Bank,  11  Colo.  97.  '^Downing  v.    Phillips,   4  Yeates, 

2  Wilcox  V.  Smith  (S,  D.),  55  N.  W.  274. 

1106;  Lovier  V.  Gilpen,  6Dana(Ky.),  sjames  u.    Dowell,  15  Miss.    333; 

321.     See  Claussen  v.  Easterling,  19  McKinsey    v.     Anderson,     4    Dana 

S.   C.   515;  Falvey  v.   Adamson,   73  (Ky.),  62. 

Ga.  493.  9  Harris  v.  Linnard,  9  N.  J.  L.  58. 

3  Bisbee  v.  Bowden,  55  N.  J.  L.  69.  lo  Clark  v.  Wilson,  3  Wash,   C.  C. 
*  Reed    v.    Maben,    21   Neb.    696 ;  560 ;  Fisher  v.  Consequa,  2  id.  382. 

n  Reed  v.  Ennis,  4  Abb.  Pr.  393. 


§§  703-705.]       DISSOLUTION    ON    EVIDENCE    BEYOND    EECOED.         483 

his  attorney  may  make  the  affidavit  by  leave  of  court.^  If 
there  are  two  or  more  defendants,  each  should  plead  and 
verify.-  The  plaintiff  is  given  opportunity  to  make  a  new 
attachment  affidavit  and  bond  in  Missouri.^ 

§  703.  The  overruling  of  a  motion  to  quash  for  patent  errors 
does  not  estop  the  defendant  from  proceeding  to  have  the 
attachment  dissolved  for  causes  to  be  established  by  evidence.'* 
A  second  motion  to  dissolve,  of  the  same  character  as  the 
first,  is  inr.dmissible,'^  for  the  order  upon  it  is  conclusive  unless 
set  aside  or  reversed.'' 

The  time  for  dissolving  on  grounds  not  patent  but  estab- 
lished by  evidence  is  generally  till  judgment  in  the  main  case;^ 
but  it  has  been  allowed  after.^  It  is  irregular  to  try  the  main 
action  while  traverse  of  the  attachment  is  pending.^ 

§  704.  Whether  the  right  to  contest  the  truth  of  the  plaint- 
iff's affidavit  is  conferred  by  statute,  or  is  exercised  independ- 
ently of  it,  the  practice  is  much  the  same  where  affidavits  or 
other  evidence  beyond  the  papers  of  the  case  are  receivable 
upon  the  hearing;  and  the  right  need  not  necessarily  be  stat- 
utory.^'' 

§  705.  In  order  to  entitle  the  mover  to  introduce  testimony, 
he  must  have  laid  the  proper  ground  therefor.^^    If  he  confines 

1  Irwin  V.  Evans,  93  Mo.  473;  Mo.  McManus,  17  Mo.  345;  Swezy  v. 
R.  S.,  §  438.  Bartlett,  3  Abb.  Pr.  (N.  S.)  444 ;  Law- 

2  Hill  V.  Bell,  111  Mo.  35.  rence  v.  Jones,  15  Abb.  Pr.  110. 
»Claflin  V.   Hoover,  20  Mo.  App.        8  Gore  r.  Ray,  73  Mich.  385. 

314 ;  McDonald  v.  Fist,  53  Mo.  343 
Henderson  v.  Drace,  30  id.  358 
Middleton    v.    Frame,    21    id.   413 


3  Main  v.  Bell,  33  Wis.  544 ;  David- 
son V.  Hackett,  45  id.  208.  See  Pigue 
v.  Young,  85  Tenn.  263. 


Tevis  r.  Hughes,  10  id.  380.  'ophiijpgburgh  Bank  i-. Lackawanna 

^Thalheimer  v.  Hays,  42  Hun,  93;  R.  R.  Co.,  3  Dutch.  206;  City  Bank 

N.  Y.  Code,  §  683.  v.    Merritt,    1    Green  (N.    J.),    131 ; 

^Hillyer  v.  Biglow,  4T  Kan.  473.  Vieuue    v.   McCarty,    1    Dall.    165; 

See  Salmon  v.  Mills,  49  Fed.  333.  Campbell  v.  Morris.  3  Har.  &  McH. 

«  Strauss  v.  Cooch,  47  Ohio  St.  115.  (Md.)  535 ;  Hardesty  v.  Campbell,  29 

'Guest  V.   Ramsey,  50  Kan.  709;  Md.  533;  Gover  u.  Barnes,  15  id.  576; 

Doggett  V.  Bell,  32  Kan.  298;  Quin-  Lambden  v.  Bowie,  3  id.  334;  Boj-es 

land  V.  Danford,  28  id.  507 ;  Bassett  v.  Coppinger,  1  Yeates,  377 ;  Branson 

V.  Hughes,  48  Wis.  23;  Whipple  v.  v.  Shinn,  1  Green  (N.  J.),  250, 

Hall,  36  Neb,  720;  Rudolph  v.  Mc-  n  Dickinson  r,  Barnes,  3  Gill  (Md.). 

Dowell,  6  id,  163;  Moline,  etc,  Co,  v.  485;  Myer,  etc.  Co.  v.  Malm,  47  Kan, 

Curtis  (Neb.),  57  N.  W,  161,    See  Reed  762;  McFarland  v.  Claypool,  128  111. 

V.   Mayben,   21   Neb,   696;   Lindsley  397 

V.  Malone,  23  Pa.  St.  24 ;  Cannon  v. 


484  ATTACHMENT    PEOCEEDINGS    IN    COURT.  [§  705. 

his  motion  to  the  original  papers,  he  cannot  go  beyond  them 
in  offering  his  evidence,  nor  can  the  plaintiff  introduce  new 
affidavits  to  sustain  his  attachment.^  It  is  onl}''  when  the 
mover  assigns  ground  beyond  tlie  record  and  presents  affida- 
vits or  other  evidence  beyond  the  papers,  that  the  plaintiff  in 
the  case  —  defendant-in-rule  —  may  oifer  affidavits  additional 
to  that  upon  which  the  attachment  was  issued.^  Such  addi- 
tional testimony  should  be  confined  to  the  support  of  the 
ground  or  grounds  on  which  the  attachment  was  issued,  and 
not  extend  to  the  maintenance  of  the  attachment  on  other 
grounds;  but  it  may  be  offered  to  show  facts  posterior  to  the 
original  application  tending  to  sustain  it,  or  to  show  a  subse- 
quent change  in  the  relations  of  the  parties.^  It  has  been 
held,  however,  that  the  deposition  of  the  plaintiff  himself, 
taken  after  the  issuance  of  the  writ,  is  inadmissible  on  such  rule.* 
Where  the  charge  was  that  the  debtor  was  about  to  remove 
his  property  from  the  state  to  defraud  creditors,  he  was  per- 
mitted to  testify  and  deny  intent  to  defraud,  on  trial  of  his 
motion  to  dissolve  the  attachment.^  When  the  ground  is  the 
non-residence  or  removal  of  the  debtor,  the  defendant  should 
clearly  disprove  it,  to  have  the  attachment  dissolved.^ 

1  Steuben  County  Bank  v.  Alber-  ^  Cowlon  v.  De  Lisle,  1  Browne 
ger,  56  How.  Pr.  345;  Brewer  v.  (Pa. ),  291.  (See  Gibson  v.  McLaugh- 
Tucker,  13  Abb.   Pr.  76;  Wilson  v.     lin,  id.  293. 

Briton,  6  id.  33;  Genin  v.  Tompkins,  ^jjyde  v.  Nelson,  11  Mich.  353.    In 

IS  Barb.  265.  New  York  evidence  aliunde  is  ad- 

2  Morgan  v.  Avery,  7  Barb.  656;  St.  missible  to  sustain  or  disprove  alle- 
Armant  V.  De  Beixcedon,  3  Sandf.  gations  of  the  affidavit  respecting 
703 ;  Furnian  v.  Walter,  13  How.  Pr.  fraudulent  removal  or  disposition  of 
848;  Gasherie  v.  Apple,  4  id.  64;  property.  Livermore  v.  Ehodes,  27 
Bank  of  Commerce  v.  Rutland,  etc.  How.  Pr.  506 ;  Dickinson  v.  Benham, 
R.  R.  Co.,  10  id.  1;  New  York  &  Erie  13  Abb.  Pr.  158;  O'Reilly  v.  Freel, 
Bank  u.  Codd,  11  id.  231;  Talbot  y.  37  How.  Pr.  272;  Swezey  v.  Bart- 
Pierce,    14  B.   Mon.   (Ky.)  195;    El-  lett,  3  Abb.  Pr.  444. 

dridge  v.  Robinson,  4  Serg.  &  Rawle  ^  Henderson  v.  Travis,  6  La.  Ann. 

(Pa.),  548 ;  Nelson  v.  Munch,  23  Minn.  174 ;  Gilbert  v.  Hollinger,  14  id.  441 ; 

229;    Shadduck    v.    Marsh,    IZab.  Lewis  r.  Wright,  3  Bush  (Ky.),  311; 

(N.  J.),  434;  Day  v.   Bennett,  3  Har-  Degnan  v.    Wheeler,  2  Nott  &  Mc- 

rison(N.  J.)  287;Cammannu.  Tomp-  Cord   (S.    C).    323:    Shrewsbury   v. 

kins,  1  Code  R.  12.  Pearson,    1    McCord    (S.    C),    331 ; 

3  Dickinson  v.  Benham,  12  Abb.  Brandon  v.  Shinn.  13  N.  J.  L.  250; 
Pr.  158;  20  How.  Pr.  343.  See  Dynes  Hill  v.  Whitney,  16  Vt.  461.  If  the 
V.  Robinson,  11  la.  137.  debt  claimed  of  a  non-resident  is  not 


^§  YOG,  Y07.]       DISSOLUTION'    ON    EVIDENCE    BEYOND   EECORD.        485 


§  YOG.  On  a  motion  to  dissolve,  made  by  a  partner  when 
attachment  had  been  sued  out  against  him  on  the  ground  of. 
his  non-residence,  by  his  copartner,  on  an  unsettled  partner- 
ship account,  the  court  held  that  it  might  inquire  whether  the 
cause  of  action  arose  wholly  within  the  state.^ 

§707.  Burden  of  proof. —  The  defendant  who  appears  to 
contest  the  truth  of  the  affidavit  must  adduce  some  proof  of 
its  falsity  before  the  plaintiff  can  be  obliged  to  add  other 
evidence  to  that  of  the  affidavit  itself,  in  some  states.  The 
burden  of  proof  is  there  upon  the  plaintiff -in-rule  in  such  case, 
in  the  first  instance;^  but  where  the  affidavit  is  not  consid- 
ered as  evidence  at  all  on  the  trial  of  such  a  rule,  as  in  most 
of  the  states,  the  onus  is  on  the  defendant-in-rule  to  establish 
the  grounds  of  his  attachment.^  And  where  he  attempts  to 
do  so  by  the  submission  of  additional  affidavits,*  the  plaintiff- 
in-rule  may  meet  them  by  counter  affidavits.^     The  affidavit 


due,  the  attachment  may  be  dis- 
solved on  motion,  in  Kansas.  Pierce 
V.  Myers,  28  Kan.  364. 

1  Stone  V.  Boone,  24  Kan.  337. 

-'State  V.  Quick,  45  N.  J.  L.  308; 
N.  J.  Rev.,  p.  55;  Callioun  v.  Han- 
nan,  87  Ala.  277;  Brumgard  v.  An- 
derson, 16  La.  341 ;  Simons  r.  Jacobs, 
15  La.  Ann.  425;  Offut  v.  Edwards, 
9  Rob.  (La.)  90;  Moore  r.  Angiolette, 
12  Martin  (La.),  582.  But  see  Sub- 
lett  V.  Wood,  76  Va.  318.  The  at- 
taching creditor  must  first  show  that 
suflScient  cause  existed  for  issuing 
the  attachment. 

3  Straus?  V.  Abrahams,  33  Fed. 
310;  Miller  v.  Godfrey,  1  Colo.  177; 
Meinhard  v.  Lilienthal,  17  Fla.  001; 
Colby  V.  Gould,  16  id.  167;  Canova 
V.  Colby,  id.  167 ;  Jones  v.  Swank,  51 
Minn.  285 ;  Wright  v.  Rambo,  21 
Oratt.  158;  Towle  v.  Lamphere,  8 
Bradw.  399:  Otis  v.  Benedict,  25 
Neb.  372;  Jackson  v.  Bain,  74  Ala. 
828;  Genesee  Sav.  Bank  v.  Michigan, 
«tc.  Co.,  52  Midi.  164;  Armstrong  r. 
Cook,  95  id.  257;  Brown  v.  Blanch- 
ard,  39  id.  790:  Macumber  v.  Beam, 
22   id.   395;  Mitchell  V.    Carney,  41 


Kan.  139;  Kendall  Shoe  Co.  v.  Au- 
gust (Kan.),  33  P.  635;  Becker  v. 
Langford,  39  Kan.  35;  McPike  v.  At- 
weli,  34  id.  143;  Tucker  v.  Frederick, 
28  Mo.  574;  Seville  v.  Wagner,  46 
Ohio  St.  53;  Wyman  v.  Wilmarth, 
1  S.  D.  172;  Noyes  v.  Lane,  1  id. 
125;  Derra  v.  Bagby.  80  la.  197; 
Bucks  V.  Moore,  36  Mo.  App.  529; 
Myers  v.  Boyd,  37  id.  532:  Conner  v. 
Commissioners  of  Rice  Co.,  20  Kan. 
575;  Coston  v.  Paige,  9  Ohio  St. 
397;  Hernsheim  v.  Levy,  32  La.  Ann. 
340;  Ellison  v.  Tailon,  2  Neb.  14; 
Smith  V.  Easton,  54  Md.  138 ;  Cham- 
pion Machine  Co.  v.  Updyke,  48 
Kan.  404;  Burrows  v.  Trant,  88  Va. 
980;  Kenny  v.  Wallace,  87  Ga.  724; 
Godbe  Pitts  Drug  Co.  v.  Allen,  8 
Utah,  117. 

4  Wearne  v.   France,  3  Wyo.  273. 

5  Swezey  r.  Bartlett,  3  Abb.  Pr.  (N. 
S.)444;  Lawrence  v.  Jones,  15  Abb. 
Pr.  110;  Phillipsburg  Bank  v.  Lack- 
awanna R.  R.  Co..  27  N.  J.  L.  206; 
Shadduck  v.  Marsh,  1  Zab.  (N.  J.) 
434 ;  Day  v.  Bennett,  3  Harrison 
(N.  J.),  287;  Bronson  v.  Shinn,  1 
Green   (N.    J.),    250;    City  Bank   v. 


4S6  ATTACHMENT    PROCEEDINGS    IN    COUET.       [§§  Y08,  709. 

on  which  the  writ  was  granted  cannot  be  supported  by  addi- 
tional affidavits  in  'New  York  unless  the  motion  to  dissolve 
contains  new  matter.^ 

§  708.  On  the  trial  of  the  rule,  when  aflBdavits  may  be  read 
by  both  parties,  the  question  is  whether  there  is  legal  basis 
for  the  attachment:  not  whether  it  w^as  rightfully  issued  on 
the  papers.  The  burden  is  on  the  attaching  creditor,  and  he 
therefore  has  the  opening  and  closing  of  the  argument.^  The 
personal  case  is  still  open  to  be  tried  upon  the  merits.'  On 
such  a  rule,  if  the  attaching  creditor  fails  to  sustain  the  facts 
stated  in  his  affidavit,  after  the  o)ius  has  been  thrown  upon 
him,  the  attachment  will  be  quashed.*  Though  the  writ  was 
legally  granted  on  the  plaintiff's  oath  to  his  belief,  the  exist- 
ence of  reasons  for  belief  is  riot  necessarily  in  question  on  the 
trial  of  a  motion  to  dissolve,  but  whether  the  fact  really  was 
as  the  plaintiff  believed  it  to  be.^  He  cannot  adduce  new 
facts.^     He  need  not  sustain  more  than  one  good  ground.^ 

§  709.  Where  the  evidence  i^ro  and  co7i  is  not  confined  to 
affidavits,  the  defendant  may  cross-examine  the  plaintiff.^ 
The  burden  of  proof  is  on  the  attaching  creditor  to  sustain 
his  charge  of  fraudulent  disposition,  but  not  to  prove  intent 
to  defraud  or  delay .^  When  the  issue  is  the  wrongful  suing 
out  of  the  writ  based  on  an  alleged  sale  to  defraud  creditors, 
the  attachment  defendant  has  been  held  incompetent  to  tes- 
tify to  the  intent  with  which  he  disposed  of  his  property.^" 

If  he  has  assigned,  and  is  not  a  party,  and  the  motion  to 
dissolve  is  made  by  the  assignee,  his  statements  are  not  ad- 

Menitt,  id.   131 ;  Hodson  v.   Tootle,  Boscher  v.  Roullier,  4  Abb.  Pr.  396. 

28  Kan.  317;  Baer  v.  Otto,  34  Ohio  See  Furman  v.  Walter,  13  How.  Pr. 

St.    11;    Braunsdorf    v.    Felner,    69  348;  Vienne  u.  McCarty,  1  Dall.  154. 

Wis.    334 ;    Hanson    v.    Doherty,    1  *  Ridgway  v.  Smith,  17  111.  38. 

Wash.  461.  SBlanchard  v.  Brown,  42  Mich.  46. 

iBuell  V.   Van  Camp,  119  N.  Y.  6  Myers  n  Whiteheart,  24  S.  C.  196. 

160.  "^Eisenhardt  v.   Cabanne,   16  Mo. 

2  Jordan  v.  Dewey  (Neb.),  59  N.  W.  App.  531. 

88 ;    Dolan  v.   Armstrong,    35  Neb.  §  Tyler  v.  Safford,  24  Kan.  580. 

339;  Wagon  Co.  v.  Benedict,  25  id.  ^  Noyes  v.    Cunningham,    51  Mo. 

372.  App.  194. 

^  Hermann  v.  Amedee,  30  La.  Ann.  ^^  Selz  v.   Belden,  48  la.  451.     See 

393;  Miller  v.  Chandler,  29  id.  88;  Joseph!  v.  Clothing  Co.  (Mont.),  3a 

O'Reilly  V.  Freal,  37  How.  Pr.  272;  P.  1. 
Genin  v.   Tompkins,   12   Barb.  265; 


§  710.]  DISSOLUTION    ON    EVIDENCE    BEYOND    KECOED.  487 

raissible  against  the  assignee.^  On  the  question  of  intent  to 
defraud,  the  defendant  may  testify  to  his  financial  condition.^ 
"When  plaintiffs  were  nonsuited,  and  the  nonsuit  was  imme- 
diately set  aside,  it  was  held  that  the  attachment  lien  had  not 
been  disturbed.'  So  the  reversal  of  an  order  dissolvins:  attach- 
ment  restores  the  lien  unless  another  has  acquired  a  right  to 
the  property  meanwhile,  it  is  said.  The  restoration,  for  in- 
stance, could  not  burden  the  property,  if  a  purchaser  had 
bought  in  good  faith  from  an  assignee  for  the  benefit  of  cred- 
itors, before  the  order  of  release  was  set  aside.* 

§710.  Effect  as  to  the  i)ermnal  action. —  The  principal  or 
personal  action  (when  the  debtor  has  been  served  or  has  ap- 
peared) is  not  dismissed  b}''  the  defeat  of  the  ancillar}'^  suit.' 
If  there  has  been  no  service  or  appearance  there  is  really  no 
personal  suit,  and  the  quashing  of  the  attachment  ends  the 
whole  case.^  It  does  not  acquit  the  debtor  of  his  obligation, 
if  such  exists,  since  he  may  be  sued  therefor  thereafter.^  Its 
effect  is  confined  to  the  questions  adjudicated  by  the  ruling 
upon  the  motion  or  plea;  and  it  is  final  as  to  ^em  unless 
overruled  on  appeal.^  The  effect  of  making  the  rule  absolute 
is  to  discharge  the  attached  property;^  and  upon  such  ruling 
appeal  may  be  taken  or  a  writ  of  error  sued  out,  as  the  prac- 
tice may  be  in  any  state.  Eefusal  to  quash  is  not  usually  a 
matter  for  such  writ  or  for  appeal,^*"  but  the  practice  is  not 
uniform."  When  a  motion  is  overruled  and  the  order  is  re- 
viewable, the  defendant  should  take  exception  at  once,  if  he 

1  Wichita,  etc.  v.  Records,  40  Kan.  Rancher  v.  McElhenny,  11  Mo.  App. 
315.  434. 

2  Ruthven  v.  Beckwith,  84  la.  715.  9  Currens  v.  RatcHflfe,  9  la.  309. 
See,  as  to  evidence  to  prove  fraud,  i"  Massey  v.  Walker,    8  Ala.    167 ; 
Salomon    v.    Smith,    16    Colo.    293;  Ellison  y.  Mounts,  13  id.  472;  Luttrell 
Harmon  v.  Cattle  Co.,  9  Mont.  243.  v.  Martin,  112   N.   C.   503;  Guilford 

3  Dollins  r.  Pollock,  89  Ala.  351.        Co.    v.    Georgia    Co.,    109    id.   310; 
4Pach  V.  Gilbert,  124  N.  Y.  612.        Busbin  v.  Ware,  69  Ala.  279;  Wat- 

5  Bundrem  v.  Denn,  25  Kan.  430;  son  v.  Auerbach,  57  id.  353;  Gee  v. 
Hills  V.  Moore,  40  Mich.  210;  Her-  Alabama,  etc.  Co.,  13  id.  722;  Rey- 
mann  v.  Amedee,  30  La.  Ann.  393;  nolds  v.  Bell,  3  id.  57;  Brown  v. 
Miller  r.  Chandler,  39  id.  88.  Ridgeway,   10   Pa.   St.  42;  First  N. 

6  Watson  V.  Simpson,  15  La.  Ann.  Bank  r.  Weckler,  51  Md.  30 ;  Mitch- 
709;  Kendall  v.  Brown,  7  id.  668.  ell  v.  Chesnut,  31  id.  521. 

"Hillu.  Culan,  1  Grant  (Pa.)  Cas.  ^  Allowed  in  Texas:  Dawson  v. 
463.  Miller,  20  Tex.  171 ;  Messner  v.  Lewis, 

SDanforth  v.  Rupert,   11   la.  547;    id.  221. 


488  -ATTACHMENT    PROCEEDINGS    IN    COURT.  [§  711. 

wishes  it  reviewed;^  in  Louisiana  the  ruling  may  be  assigned 
as  error  on  appeal.- 

An  order  dissolving  attachment  will  not  be  disturbed  on 
appeal  when  granted  on  conflicting  oral  testimony;^  but  it 
will  be  reversed  w4ien  clearly  not  supported  by  evidence.* 
When  reversed,  and  the  case  remanded,  the  parties  are  in  their 
original  position:  so  a  claimant  who,  after  reversal,  pleaded 
in  abatement  that  the  attachment  had  been  quashed  and  his 
replevin  bond  discharged,  was  not  sustained.'^ 

While  orders  of  dismissal  are  thus  generally  reviewable  on 
appeal,  the  appellate  court  cannot  compel  the  trial  court,  by 
mandamus,  to  dissolve  attachment  for  irregularities.^  If  the 
plaintiff  appellant  has  given  a  supersedeas  bond,  his  lien  con- 
tinues.^ 

The  defendant  has  a  right  to  the  return  of  his  property 
w^hen  he,  upon  legal  grounds,  has  the  attachment  dissolved 
pending  the  main  action;  and  the  court  has  no  power  to  as- 
sume that  he  has  lost  such  right  because  there  are  junior 
attachments  pending  against  the  property  sought  to  be  re- 
leased.^ The  property  rightly  goes  to  him  and  not  to  an 
assignee  for  the  benefit  of  creditors;®  but  the  sheriff  may 
show  that  it  is  already  in  the  assignee's  hands.^*^  Attachment 
is  not  dissolved  by  the  assignment  of  the  attacher's  rights, 
after  levy,  if  he  continues  to  prosecute  in  his  own  name  for 
the  use  of  the  assignee.^^ 

YII.  Traverse  After  Dissolution  by  Bonding. 

§  711.  Reasons  for. —  After  the  dissolution  of  the  attach- 
ment and  the  release  of  the  property  by  virtue  of  a  bond 
conditioned  to  pay  whatever  the   plaintiff  may  recover,  can 

1  Schlatter  v.  Hunt,  1  Mo.  651.  6  Putnam,  Ex  joarte,  20  Ala.  593. 

2  Wells  V.  St.  Dizier,  9  La.  Ann.  ■?  McDonald  v.  Bowman,  35  Neb. 
119.  93.     The  bond  must  be  given  within 

3  Johnson  v.   Steele,   23   Neb.  82;  twenty  days  in  Nebraska. 
Holland  v.  Bank,  22  id.  571 ;  Grimes        8  Schall  v.  Bly,  43  Mich.  401 :  State 
V.  Farrington,   19   id,   44;  Mayer  v.  Bank   of  Fenton  v.  Whittle,   41  id. 
Zingre,  18  id.  458;  Hollands.  White,  365;  Sheldon  v.  Stewart,  43  id.  574. 
120  Pa.  St.  228.  ®  Morawitz  v.  Wolf,  70  Wis.  515. 

4  Jones  V.  Bivin,  36  Neb.  831.  i»  Clark  v.  Lamoreaux,  70  Wis.  508. 

5  Carpenter  v.  First  N.  Bank  (Tex. ),  Compare  Evans  v.  Virgin,  72  id.  42. 
20  S.  W.  130,  distinguishing  Blum  n  Foster  v.  Goodwyn,  82  Ala.  384. 
V.  Addington  (Tex.),  9  S.  W.  82. 


^  712.]  TRAVERSE    AFTER    DISSOLUTION    BY    BONDING.  4-89 

there  be,  in  the  case  itself,  any  further  questioning  of  the 
validity  of  the  attachment?  The  negative  has  been  held;  but 
it  has  not  been  the  doctrine  everywhere,  and  the  affirmative 
seems  the  preferable  answer.  Seasoning  aside  from  the  de- 
cisions, it  may  be  remarked  that  great  injustice  might  be  done 
if  the  invalidity  of  the  attachment  could  only  be  shown  prior 
to  the  execution  of  such  bond.  The  circumstances  may  be 
urgent;  the  immediate  possession  of  the  attached  property 
may  be  very  important  to  the  defendant;  his  instant  recovery 
of  it  might  be  essential  to  the  keeping  of  his  business  engage- 
ments; his  credit  as  a  merchant  or  business  man  might  depend 
upon  regaining  his  attached  property  at  once;  his  attached 
stock  might  be  rapidly  declining  in  a  time  of  panic;  his  busi- 
ness as  a  newspaper  publisher  might  admit  of  no  delay  in 
getting  his  press  and  other  materials  free  from  arrest  —  and 
yet  the  court  might  not  be  in  session,  the  judge  might  be  ab- 
sent for  months,  no  opportunity  might  be  afforded  for  testing 
the  validity  of  the  attachment  at  once.  What  must  he  do? 
He  may  give  a  forthcoming  bond,  and  his  right  thereafter  to 
test  the  attachment  is  generally  conceded.  But  suppose  the 
attached  thing  consists  of  goods  which  he  wishes  to  ship 
abroad  for  sale  at  once,  to  meet  a  good  market:  he  cannot 
then  consistently  give  a  forthcoming  bond.  He  might  give 
it,  with  explanation  to  the  surety  and  assent  by  him,  but  he  is 
not  obliged  to  do  that,  and,  ordinarily,  he  could  not  con- 
sistently do  that.  It  would  be  a  violation  of  his  engagement. 
§  712.  He  is  driven  to  the  execution  of  a  dissolution  bond. 
But  suppose  the  attachment  is  illegal ;  there  is  no  affidavit,  no 
bond,  no  valid  writ,  nothing  that  will  bear  test  in  the  judicial 
crucible.  Ought  he  not  have  the  opportunity,  when  the  court 
opens,  to  question  the  validity  of  the  attachment?  Whether 
the  seizure  has  been  in  vacation  or  not;  whether  he  could 
have  taken  a  rule  to  dissolve  before  bonding  or  not,  is  there 
any  good  reason  wh}^  he  should  not  have  the  character  of  the 
attachment  judicially  ascertained,  in  the  case,  notwithstand- 
ing its  dissolution  by  bonding?  Is  there  any  good  reason  why 
he  should  be  relegated  to  his  defense  (in  case  of  a  suit  on  the 
bond)  that  the  obligation  taken  by  him  and  his  surety  was 
without  valid  consideration  because  of  the  illegality  of  the 
attachment? 


490  ATTACHMENT   PEOCEEDINGS    IN    COURT.       [§§  713,  714. 

It  may  be  said  that  the  dissolution  bond  put  an  end  to  the 
attachment  suit.^  That  is  true;  but  it  did  not  put  an  end  to 
the  personal  suit;  and  it  is  in  that  remaining  suit  that  the 
testing  of  the  forced  obligation  to  pay  whatever  may  be  re- 
covered therein  is  to  be  had.  It  may  be  said  that  the  defendant 
will  be  bound  to  pay  whatever  may  be  recovered  against  him, 
bond  or  no  bond.  That  is  true;  but  the  obligation  of  the 
surety  depends  upon  the  validity  of  the  bond,  and  the  validity 
of  the  bond  depends  upon  the  legality  of  the  attachment.^ 
The  principal  should  protect  his  surety. 

§  713.  ISTot  only  in  extreme  cases,  when  the  owner  of  the 
attached  property  is  necessitated  to  procure  its  immediate 
release  for  business  purposes  as  above  suggested,  but  in  all 
cases  there  is  reason  for  allowing  the  defendant  to  traverse 
the  attachment  after  having  giving  the  dissolution  bond ;  for 
the  bonding  is  in  a  sense  involuntary,  compulsory,  unwillingly 
executed.''  The  principal  reason,  however,  is  that  the  obliga- 
tion assumed  is  with  the  unwritten  proviso  that  the  court  has 
jurisdiction  and  that  the  attachment  is  valid;  and  while  this 
might  avail  the  obligors  when  sued  upon  the  bond  after  judg- 
ment, it  ought  also  to  be  available  to  prevent  the  rendition  of 
any  immediate  judgment  against  the  surety  in  case  the  attach- 
ment can  be  shown  to  be  void  for  want  of  jurisdiotion  or  for 
any  other  cause. 

§  714.  Affirmative  rulings. —  Whether  the  defendant  may 
thus  resist  and  traverse  the  attachment  after  giving  bond  to 
dissolve  it,  and  after  it  has  really  been  thus  dissolved,  is  a 
question  that  has  been  differently  decided  in  different  states. 
The  affirmative  has  been  very  earnestly  maintained.* 

1  P^erguson  v.  Glidewell,  48  Ark.  Roux,  14  La.  83;  Quine  v.  Mayers,  2 
195;  Bunneman  v.  Wagner,  16  Oreg.  Rob.  (La.)  510;  Myers  v.  Perry,  1  La. 
433.  Ann.  373;  Brinegar  v.  Griffin,  3  id. 

2  Pacific  N.  Bank  v.  Mixter,  134  154;  Kendall  v.  Brown,  7  id.  668; 
U.  S.  721.  Compare  Wolf  v.  Cook,  Love  v.  Voorhies,  13  id.  549;  Bauer 
40  Fed.  432.  v.  Antoine,   22  id.   145 ;  Edwards  v. 

3  Vose  V.  Cockroft,  44  N.  Y.  415.  Prather,  id.  334;  Claflin  v.  Baere,  57 

4  Lehman  v.  Berdin,  5  Dillon,  340 ;  How.  Pr.  78 ;  Bildersee  v.  Aden,  10 
Singer  Manuf.  Co.  u  Mason,  id.  488 ;  Abb.  Pr.  (N.  S.)  163;  Caldwell  v. 
Delano  v.  Kennedy,  5  Ark.  457;  Colgate,  7  Barb.  353;  Homan  v. 
Childress  v.  Fowler,  9  id.  159;  Wood  Brinckerboflf,  1  Denio  184-  Fortman 
V.   Carleton,    36  id.  663;  Paihles   v.  r.  Rottier,  8  Ohio  St.  553 ;  Alexander 


§§  715,  716.]       TRAVEKSE    AFTER   DISSOLUTION    BY   BONDING.        491 

The  United  States  circuit  court,  sitting  in  Arkansas,  follow- 
ing the  rulings  of  the  supreme  court  of  that  state  as  in  duty 
bound,  and  construing  section  41G  of  its  code,  which  requires 
that  dissolution  bonds  shall  be  conditioned  "  to  perform  the 
judgment  of  the  court,"  said  that  such  bond  "does  not  estop 
the  defendant  from  traversing  the  affidavit  for  attachment 
and  defending  against  the  attachment  in  every  respect  as  if 
such  bond  had  not  been  executed  and  the  property  had  re- 
mained in  the  hands  of  the  officer;"  and  that  if  the  attach- 
ment is  not  sustained,  the  plaintiff,  though  he  recover  judgment 
for  his  debt,  cannot  resort  to  the  bond  to  compel  payment  of 
such  judgment.^ 

§  715.  The  supreme  court  of  South  Carolina  said  in  1882 
that  the  question,  whether  the  giving  of  a  dissolution  bond 
is  a  waiver  of  the  right  to  set  aside  the  attachment,  was  be- 
fore them  for  the  first  time.  It  is  remarkable  that  they  had 
not  previously  encountered  this  mooted  inquiry.  After  re- 
viewing numerous  cases  jyro  and  <?o«,  they  came  to  the  con- 
clusion that  the  bonding  was  no  waiver.- 

It  would  seem  that  this  view  should  universally  prevail 
where  the  character  of  the  attachment  suit  is  recognized  as 
being  against  property  in  effect  though  personal  in  form  ;  aiul 
that  the  opposite  could  only  find  acceptance  where  the  action 
is  held  to  be  personal  only,  and  the  bond  a  mere  bail  bond. 

§  716.  Negative  rulings. —  The  opposite  position  has  been 
as  firml}'"  maintained.  After  the  dissolution  of  the  attach- 
ment by  the  substitution  of  a  valid  bond  to  pay  whatever 
judgment  may  be  rendered  against  the  defendant,  it  has  been 
held  that  no  proceeding  can  follow  in  the  case  to  test  the 
validity  of  the  attachment.*     Thg  case  is  very  different  from 

V.  Jacoby,  23  id.  358 ;  Anet  v.  Albo,  Dierolf  v.  Winterfield,  24  Wis."  143 ; 

21  id.  349;  Hoge  v.  Norton,  23  Kan.  Endress  v.  Ent,  18  Kan.  236;  Wliar- 

374;  Gass  v.  Williams,  46  Ind.  253;  ton  v.  Conger,  9  Smedes  &  M.  (Miss.) 

Winters  i\  Pearson,  72  Cal.  553.  510;  Inmau  v.  Stratton,  4  Bush,  445; 

1  Lehman  v.  Berdin,  5  Dillon,  340.  Payne  v.  Snell,  3  Mo.  409;  Myers  r. 

2  Bates  V.  Killian,  17  S.  C.  553.  Smith,   29  Ohio  St.    120;  Austin  v. 

3  Kennedy  V.  Morrison,  31  Tex.  207 ;  Burgett,  10  la.  302;  Paddock  r. 
Huff  V.  Hutchinson,  14  How.  586 ;  Matthews,  3  Mich.  18 ;  People  v.  Cam- 
Barry  V.  Foyles,  1  Pet.  311;  Hazel-  eron,  2  Gilman,468;  Wolf  u.  Cook,  40 
rigg  V.  Donaldson,  2  Met.  (Ky.)  445;  Fed.  432;  Childress  v.  Fowler,  9  Ark. 


492  ATTACHMENT  PKOCEEDINGS  IN  COURT.   [§§  717,  718. 

that  of  the  delivery  of  the  attached  property  to  the  defend- 
ant under  a  forthcoming  bond,  since,  in  the  latter  case,  the 
attachment  remains  intact,  the  defendant  holds  under  the 
sheriff,  and  the  attached  property  is  still  constructively  in 
court,  and  there  may  be  a  proceeding  to  test  the  validity  of 
the  attachment;  and,  if  the  attachment  is  found  invalid,  the 
forthcoming  bond  falls  with  it. 

§  717.  As  to  sureties. —  The  defendant  (and  usualh'^  his 
surety)  is  understood  to  concede  by  bonding,  beyond  his 
power  of  denial  in  defending  a  suit  upon  the  bond,  that  the 
property  released  belonged  to  himself,  and  was  actually  at- 
tached (whether  legally  or  not),  and  was  not  exempt  from 
execution  and  therefore  from  attachment.^  Such  concession, 
however,  cannot  be  predicated  of  the  obligors  of  a  dissolution 
bond,  executed  by  virtue  of  law  or  the  consent  of  the  plaintiff, 
when  the  defendant  himself  has  not  signed  it  or  is  not  the 
principal;  at  least  it  has  been  so  held  in  Louisiana.-  Bonds 
to  release  attached  property,  given  by  others  than  the  defend- 
ants in  the  suits,  are  allowed  under  the  practice  of  some  of 
the  states.  Claimants  intervening  in  such  suits  may  execute 
bonds  in  their  own  behalf;  representatives  of  absent  defend- 
ants may  sign  as  principals,  etc.,  under  statute  provisions. 
In  an  attachment  suit  against  husband  and  wife,  she  bonded, 
and  the  judgment  being  rendered  against  him  only,  her  sure- 
ties were  not  bound.^ 

§  718.  The  discontinuance  of  an  attachment  suit  against  one 
defendant  while  it  is  continued  as  to  others  does  not  vitiate 

159;   Gillispie  v.   Clark,    1  Tenn.  2;  Tex.  207;  Coleman  u.  Bean,  32  How. 

Harper  v.  Bell,  2  Bibb,  221;  Fife  v.  (N.  Y.)  Pr.  370;  Reynolds  v.  Jordan, 

Clark,  3  McCord,  347;  Reynolds  v.  19  Ga.  436;  Taylor  v.  Taylor,  3  Bush 

Jordan,    19    Ga.    436;     Scanlon    v.  (Ky.),  118;  Hazelriggr.  Donaldson,  2 

O'Brien,    21   Minn.    434.     See  Bank  Met.  (Ky.)  445. 

V.  Mixter,  124  U.  S.  721,  728:  Borden        2  Edwards  v.  Prather,  22  La.  Ann. 

*\  American  Sm-ety  Co.,  159  Pa.  St.  334;  Baur   v.    Antoine,    22  id.    145; 

465.  Quine  v.   Mayes,   2  Rob.   (La.)  510; 

1  Stephens  v.  Greene  County  Iron  Oliver  v.  Gwin,  17  La.  28;  Kendall 

Co.,  11  Heisk.  71 ;  Frost  v.  White,  14  v.  Brown,  7  La.  Ann.  668;  Schlater 

La.  Ann.  140;  Beal  v.  Alexander,  1  v.  Broaddus,  14  id.  82. 
Rob.  (La.)  277;  McMillan  v.  Dana,  18        3  jaycox  v.  Chapman,  10  Ben.  517. 
Cal.  339 ;   Kennedy  v.   Morrison,  31 


§  718.]  TEAVEESE    AFTEE   DISSOLUTION   BY   BONDING.  493 

the  joint  bond  of  all  the  defendants  to  dissolve  the  attach- 
ment.^ Sureties  are  not  released  because  the  defendant  has 
notified  the  plaintiff  that  he  withdraws  the  undertaking,  after 
the  attachment  has  been  dissolved  on  the  bond.^  In  Massa- 
chusetts the  obligors  on  a  dissolution  bond  are  not  bound  to 
satisf}?^  a  judgment  rendered  after  the  vacation  of  the  attach- 
ment.^ 

iDalton  V.  Barnard,  150  Mass.  473;        2  Adier  v.  Baltzer,  54  N.  Y.  Supe- 
Poole  V.  Dyer,  123  id.  363 ;  Campbell    rior  Ct.  514. 

V.  Brown,  121  id.  516.  3  Dresser  v.  Cutter  (Mass.),  37  N.  E. 

176. 


CHAPTER  XYIII. 

EXEMPTION— RELATIVE  TO  ATTACHMENT  AND  GARNISHMENT. 

I.  Execution  and  Attach jdent §§  719-723 

II,  Claiming  Before  the  Levy 724-726 

III.  Claiming  in  Court 727-728 

IV.  Claim  M'jst  be  Before  Judgment 729-730 

V.  Claiming  Before  Sale 731-735 

VI.  Homestead  Not  Dedicated  After  Attachment     .     .  736 

VII.  Garnishment,  as  to  Claim  of  Exemption     ....        737-742 

VIII.  Garnishment  in  a  Foreign  State 743-745 

I.  Execution  and  Attachment. 

§  719.  What  is  exempt  from  execution  is  exempt  from  at- 
tacliment. —  Exemption  from  forced  sale  for  ordinary  debts 
arising  after  the  date  of  its  beginning,  protects  the  favored 
property  from  levy  either  by  execution  or  attachment.  The 
debtor,  upon  proper  showing,  ma\'^  have  the  seizure  set  aside. 
If  an  ordinar}^  judgment  has  been  rendered  against  him,  and 
his  exempt  propert}^  has  been  taken  in  execution,  his  right  to 
claim  exemption  is  not  more  manifest  than  when  such  prop- 
erty is  attached  at  the  beginning  of  a  suit  preliminary  to  exe- 
cution. The  difference  between  the  two  procedures  is  in  the 
time  of  claiming  — not  in  the  right  to  claim  exemption.  The 
creditor  may  cause  such  property  to  be  attached,  just  as  he 
may  cause  that  of  a  third  person  to  be  taken,  but  he  can  hold 
neither  after  its  non-liability  has  been  shown;  for  what  is  ex- 
empt from  execution  is  also  exempt  from  attachment.^  A 
homestead  already  established  is  free  from  liability  to  attach- 

1  Williamson  v.  Harris,  57  Ala.  40 ;  burg  v.  Hyatt,  24  Fed.  898 ;  Fanning 

Anderson  v.    Odell,    51    Mich.    492;  v.  First  N.  Bank,  76  111.  53 ;  111.  Glass 

Iosco  Savings  Bank  u  Barnes  (Mich.),  Co.    v.    Holnian,    19  id.    30;   Squire 

58  N.  W.  606;  Church  v.  Holcomb,  v.  Mudgett,  61  N.  H.  149;  George  v. 

45  Mich.  41 ;  Winterfield  v.  Railroad,  Fellows,  6  id.  398 :  Rowell  v.  Powell, 

29  Wis.  589;  Staniels  v.  Raymond,  4  53  Vt.  302;  George  v.  Bassett,  54  id. 

Cush.   314;  Hastie  v.   Kelly,  57  Vt.  217;  Parks  v.   Cushman,   9  id.  320; 

293;    Clerk  v.    Averill,    31   id.    512;  Halsey  v.  Fairbanks,  4  Mason,  206; 

Steele  v.  Lyford,  59  id.  230;  Naum-  Handy   v.    Dobbin,    12  Johns.    220; 


§§  720-T22.]  EXECUTION    and    ATTACiniENT.  495 

raent  for  ordinan''  debts  contracted  subsequent  to  its  dedica- 
tion,^ but  its  owner  may  be  made  a  party.-' 

§  720.  It  is  not  necessary  that  exemption  should  be  stated 
in  the  attachment  statutes.^  They  are  to  be  treated  as  conso- 
nant with  the  exemption  laws.  Construed  together,  and  also 
with  the  provisions  for  the  execution  of  personal  judgments, 
they  are  not  in  conflict.  The  court,  on  being  judicially  made 
cognizant  of  the  fact  that  the  conditions  of  exemption  have 
been  performed  by  the  debtor  in  due  time,  will  order  the  re- 
lease of  exempt  property  wn'ongfully  attached,  upon  proper 
application. 

§  721.  The  right  of  claiming  exemption,  conferred  by  the 
statute  on  that  subject,  ma}''  be  asserted  against  garnishment 
as  well  as  against  direct  attachment;  but  it  has  been  held 
that  a  statutory  inhibition  of  exemption  from  attachment 
under  stated  circumstances  did  not  apply  to  garnishment.* 

"Where,  in  actions  for  damages  ex  delicto,  no  exemption  from 
execution  is  allowed,^  the  same  restriction  is  applicable  to  at- 
tachment when  authorized  in  suits  of  that  character. 

§  722.  Defendant' s  inalienable  iwopertij. —  What  the  debtor 
cannot  alienate  his  creditor  cannot  attach,  as  a  general  rule. 
That  is,  W'here,  under  the  exemption  laws,  there  is  restraint 

Pierce    v.    Jackson,    6    Mass.    242;  220;  Abraham  v.  Davenport,  73  la. 

Savery    r.    Browning,    18    la.    246;  111;  Mumper  v.  Wilson,  72  id.  163; 

Stater.  Sandford,  12  Neb.  445;  Gall  Hickman  v.   Cruise,   id.  528;  Whit- 

V.  Hinton,  7  Abb.  Pr.   120;  Spencer  comb  r.  Whilcomb,  52  id.  715;  B3'ers 

V.  Blaisdell,  4  N.  H.  198 ;  Crocker  v.  v.  Byers,  21  id.  268 ;  Berry  v.  Nichols, 

Pierce,  31  Me.  177 ;  Davis  v.  Garrett,  96  Ind.  287 ;  Stewart  v.   Sticher,  83 

3  Ired.  459 ;  Nashville  Bank  v.  Rags-  Ga.  297. 

dale.   Peck,   296 ;  Myers  v.  Mott,  29  2  Canadian,  etc.  Co.  v.  Kyser  (Tex. 

Cal.    359;  Plant  v.   Smythe,   45  id.  Civ.  App.),  27  S.  W.  280. 

161;  Wilson  v.  Paulson,  57  Ga.  596;  3  i\ieyer  v.   Paxton,    78  Tex.  196; 

Cox  V.  Milner,  23  111.  476;  Sapping-  Traweek  v.  ]\Iartin,  79  id.  460. 

ton  V.  Oeschli,  49  Mo.  244 ;  Reed  v.  *  Illinois  Glass  Co.  v.   Holman,  19 

Ownby,  44  id.  204 ;  Davis  v.  Land,  111.  App.  30. 

88  id.  436;  Riley  v.  Hitzler,  49  Ohio  5  stucky  v.  McGibbon,  93  Ala.  622, 

St.    651;    Elliott  v.   Hall,   2   Idaho,  624;  McLaren   v.   Anderson,    81   id. 

1142 ;  Wylie  v.  Grundysen,  51  Minn.  106 ;  Williams  v.  Bowden,  69  id.  433 ; 

360.  Meredeth    v.    Holmes,   68    id.     190. 

1  Caldwell   v.    Truesdale  (Ky.),  13  Compare  Clingman  v.  Kemp,  57  id. 

S.  W,  101 ;  Peake  v.    Cameron,  102  195,  limited  in  Stucky  v.  McGibbon, 

Mo.  568;  Ackley  v.  Chamberlain,  16  supra. 
Cal.    181 ;    Bowman  v.   Norton,    id. 


496  EXEMPTION.  [§§  723,  724. 

of  alienation,  the  creditor  cannot  attach  for  his  claim  what 
the  debtor  cannot  sell  —  the  suit  being  against  the  debtor 
only.^  Whether  the  debtor  may  control  and  dispose  of  the 
property  as  his  own  is  the  criterion.  Trust  property  is  not 
liable  to  attachment  for  the  debt  of  the  trustee,  though 
it  be  recorded  in  his  name.'-  But  property  conv'^eyed  by  a 
debtor  in  trust  for  the  benefit  of  himself  and  his  family  was 
held  attachable  in  a  suit  against  him.^  A  federal  homestead 
is  not  alienable  by  the  settler  before  he  has  acquired  his  title, 
as  it  is  the  property  of  the  United  States.*  If  a  pre-emp- 
tioner  may  sqU  his  right  before  final  entry,  the  land  cannot 
be  attached  as  his  before.^  A  federal  homestead  is  exempt 
from  liability  to  forced  sale  for  any  debt  of  the  settler  ante- 
dating the  patent." 

§  723.  Property  in  public  use  is  not  attachable.  Even  though 
privately  owned  it  may  be  protected  on  the  ground  of  the  pub- 
lic good.  Vehicles  for  carrying  the  mail  atford  an  illustration : 
they  are  not  attachable  in  a  suit  against  their  private  owner.^ 
But  they  must  be  in  actual  use  for  that  purpose;  for,  while 
employed  for  the  owner's  private  purposes,  they  are  not  in- 
violate.^ 

II.  Claiming  Before  the  Levy. 

§724.  Officer  notified. —  A  debtor  who  knows  that  his  ex- 
empt property  is  about  to  be  attached  ought  to  inform  the 
officer  of  his  claim  to  exemption  before  the  lev}''  is  made.     If 

1  Manny  v.    Adams,     32  la.    165;  dola(Cal.),   20  P.    680;  Union   Pac. 

Powell   V.    Aiken,    18  La.    321;  De-  R.  Co.  v.  Kennedy  (Cal.),  20  P.  696. 

loach  V.   Jones,   id.    447;    Hepp    v.  5  ]\jcMillen  v.  Leonard  (Colo.),  34 

Glover,  15  id.  461;  The  Mariana,  19  P.    681;   Gen.    Stat.    (1883),  §  2676; 

Fed.  760:  Thompson  v.   Stevens,  10  U.  S.  R.  S.,  §  2263. 

Me.  27;  Edson  v.  Coburn,  28  Vt.  631 ;  6  Sorrels  v.  Self,  43  Ark.  451 ;  Cox 

Blanchard  V.  Coolidge,  22Pick.  151;  v.   Donnelly,    34  id.    762;  Smith  v. 

Butter  field  v.  Baker,  5  id,  522.  Steele,  13   Neb,  1 ;  Miller  v.   Little, 

-Houghton  V.  Davenport,  74  Me.  47  Cal.    348;  Russell  v.   Lowth,   21 

590.  Minn.  167 ;  Green  v.    Farrar,  53  la. 

3  Warner  v.  Rice,  66  Md.  436.  426;  Gile  v.   Hallock,  33  Wis.    523; 

4  Shoreman  v.  Eakin,  47  Ark.  351 ;  U.  S.  R.  S.,  §  2296. 

Grower  v.  Fletcher,  116  U.   S.  380;  7  Harmon  v.  Moore,  59  Me.  428. 

Quinby  u.  Conlan,  104  id.  420;  Worth  SBrjggg  v.  Strange,  17  Mass.  405; 

V.  Branson,    98  id.    118;  Hasmer  v.  Parker  v.  Porter,  6  La.  169;  Boston, 

Wallace,    97    id.    575 ;  Atlierton   v.  etc.  R.  Co.  v.  Gilmore,  37  N.  H.  410. 
Fowler,  96  id.  513 ;  Whitaker  v.  Pen- 


§  725.]  CLAIMING  BEFORE  THE  LEVY.  497 

only  a  part  of  what  is  about  to  be  attached  is  exempt,  he 
should  point  out  that  part.  By  making  his  right  known  to 
the  olKcer  at  this  stage,  he  may  save  himself  the  subsequent 
trouble  of  a  rule  to  vacate  the  attachment;  or,  if  the  officer 
should  disregard  the  notice,  the  debtor  will  have  a  clearer 
case  of  trespass  against  him  by  reason  of  the  timely  warning 
given.  The  presence  of  the  defendant  when  the  levy  is  made, 
and  his  silence  as  to  his  exemption  right,  tend  to  create  a 
presumption  of  waiver;  certainly  he  could  not,  with  good 
grace,  claim  damages  of  the  officer  for  doing  a  thing  which 
timely  explanation  on  his  part  might  have  prevented.  If  his 
silence  or  his  conversation  with  the  officer  is  such  as  to  show 
acquiescence  on  his  part,  he  will  be  presumed  to  have  waived 
his  right.^  Even  if  the  sheriff  has  seized  before  notice  of  the 
exemption,  the  exemptionist  may  notify  him  of  it  before  the 
return  of  the  writ.-  ]S[o  damages  are  recoverable  for  the  at- 
tachment of  exempt  property  without  notice,  if  it  be  imme- 
diately released  on  notice.*  If  there  was  no  acquiescence  on 
the  part  of  the  exemptionist  at  the  time  of  the  levy,  and  the 
plaintiff  and  officer  persist  in  holding  after  being  informed  of 
the  inviolable  character  of  the  property,  they  render  them- 
selves liable  to  damages,*  if  the  attachment  should  not  be  sus- 
tained by  the  court. 

§  725.  "When  the  law  exempts  either  of  two  pieces  of  prop- 
erty; or  one,  however  many  the  debtor  may  possess  (as,  one 
house,  one  cow,  one  piano),  the  debtor,  if  the  opportunity  is 
afforded  him,  must  point  out  the  thing  for  which  he  claims 
exemption,  or  his  right  will  be  considered  waived.  He  must 
make  known  his  election  of  the  exempt  property  at  once,  and 
not  stand  silent  till  the  officer  has  decided  what  to  seize  and 
has  actually  made  the  levy;  or,  if  no  prior  opportunity  has 
been  afforded  him,  he  should  elect  soon  after  the  seizure.  He 
must  not  play  fast  and  loose;  must  not  maintain  such  a  posi- 
tion that  he  can  claim  exemption  for  any  one  of  several  articles 

iBehymer  v.   Cook,  5  Colo.   395;  Hanks.    14   Oliio  St.   298;    Frost  v. 

Smith  V.  Chadwick,  51  Me.  515;  Cal-  Shaw,  3  id.  270. 

son  V.  Wilson,  58  id.   416;  Nash  v.  2\Vilcoxi\  Howe,  59  Hun,  268. 

Farrington,  4  Allen,  157;  Clapp  v.  sjjj-ndsy.  Wynn,  71  la.  593. 

Thomas,   5    id.    158.     See    Sears    v.  ^Trafford  tv  Hubbard,  15  R.  I.  326; 


Bowe  V.  AVilkins,  105  N.  Y.  333. 


33 


498  EXEMPTION.  [§  Y26. 

attached,  on  the  ground  that  that  particular  one  is  exempt. 
If  he  sets  up  no  exemption  at  or  about  the  time  of  the  levy, 
the  officer  may  attach  an}'  one  of  several  articles,  though  some 
one  be  exempt,  if  any  one  is  sufficient  to  make  the  plaintiff's 
execution  good  in  case  of  judgment.^  If  he  should  point  out 
as  exempt  a  piece  of  property  not  his  own,  he  would  thus  be 
estopped  from  afterwards  setting  up  his  own  attached  prop- 
erty as  exempt,  if  as  much  as  the  law  excepts  from  seizure  had 
thus  been  pointed  out.^ 

One  of  several  articles  being  attached  without  remonstrance 
on  the  part  of  the  defendant  entitled  to  claim  one  as  exempt, 
its  preliminary  seizure  is  lawful,  and  the  sale  in  execution  after 
judgment  must  therefore  be  so;  and  as  it  relates  back  to  the 
levy,  the  creditor  is  not  affected  by  any  intermediate  notice  or 
record.' 

§  726.  The  officer  may  (and  he  should)  proceed  to  execute 
the  writ  of  attachment,  notwithstanding  the  debtor's  claim  of 
exemption  presented  to  him,  when  he  knows  the  claim  to  be 
unfounded.^  He  is  presumed  to  know  the  statute:  so,  if  the 
debtor's  whole  propert}'^  is  clearly  within  the  exemption  limit, 
he  ought  to  heed  the  claim  and  refrain  from  the  execution  of 
the  writ.^  The  writ  does  not  protect  him  in  wrong-doing;  but 
in  a  case  of  trespass  against  him  for  entering  the  debtor's 
house  and  taking  away  exempt  property,  the  papers  of  the  at- 
tachment suit  were  admitted  to  show  mitigation  of  damag-es.^ 
"When  exempt  property  has  been  duly  claimed,  and  the  offi- 
cer has  disregarded  the  claim,  he  becomes  liable  in  damages 
to  the  debtor;  and  so  does  the  plaintiff  if  he  has  directed  the 
officer  in  this  course  or  has  availed  himself  of  the  sale.' 

1  Buzzell  V.  Hardy,  58  N.  H.  333 ;        4  Bryan  v.  Kelly,  85  Ala.  569. 
Horn  V.  Cole,  51  id.  287.    But  see  Close        &  Alley  v.  Daniel,  73  Ala.  403. 

V.  St.  Clair,  38  Ohio  St.  530;  Harring-  6  Boggan  v.  Bennett  (Ala.),  14  So. 

ton  V.  Smith,  14  Colo.  376;  Rollins  742. 

?;.  Allison,  59  Vt.  188;  Grady  r.Bram-  '^  Kestler    v.    Kern,    2    Ind.    App. 

let,  59  Cal.  105.  488;  Huseman  v.  Sims,  104  Ind.  317; 

2  Barney  y.  Keniston,  58  N.  H.  168.  Conwell  v.  Conwell,  100  id.  437; 
See  Brooks  v.  Chatham,  57  Tex.  31.  Douch  v.  Rahner,  61  id.  64;  Graham 

3  Buzzell  V.  Hardy,  58  N.  H.  331;  v.  Crockett.  18  id.  119;  Alsup  v.  Jor- 
Stowe  V.  Meserve,  13  id.  46 ;  Coffin  v.  dan,  69  Tex.  300 ;  Coldwell  v.  Porcher 
Ray,  1  Met.  212;  Stanley  v.  Perry,  5  (Tex.),  17  S.  W.  87;  State  v.  Harring- 
Greenlf.  369;  Emerson  v.  Littlefield,  ton,  33  Mo.  App.  476;  Belou  v.  Rob- 
3Fairf.  148.  bins,  76  Wis.  600;  Haswell  v.   Par- 


§  727.]  CLAnriNG  in  court.  499 

III.   Claiming  ix  Coukt. 

§  727.  Dissolution  of  attachment  on  sliowinfj  exemption. — 
Whea  exempt  property  has  been  attached,  the  debtor  may 
have  the  attachment  vacated  by  showing  that  the  property 
seized  is  exempt.^  He  not  only  may  but  he  should  do  so,  if 
he  wishes  to  avoid  the  presumption  of  waiver  and  prevent  the 
completion  of  the  inchoate  lien  put  upon  his  property  by  its 
attachment.^  After  attachment  has  been  sustained  and  the 
claim  of  exemption  denied,  the  defendant  cannot  interpose  his 
claim  to  defeat  the  execution.^  He  has  been  allowed  to  claim, 
however,  after  having  bonded  the  attached  property,*  and 
even  after  he  had  become  bailee  under  the  sheriff,  and  while 
he  held  the  seized  property  in  his  possession  in  that  capacity.' 
The  claim  must  be  made  as  the  statute  prescribes  and  at  the 
time  prescribed.^  It  must  be  by  the  owner,  as  a  general  rule; 
but  if  he  fails  to  claim,  another  beneficiary  of  the  exemption 
(his  wife,  for  instance)  has  been  allowed  to  do  so.'  A  mort- 
gagor in  possession  is  the  one  to  set  up  exemption,  rather  than 
the  mortgagee.^  The  debtor  is  required  to  file  an  inventory 
of  his  property,  when  that  is  necessary  to  ascertain  the  exemp- 
tion, in  some  of  the  states.^  In  Alabama  he  files  a  declaration 
of  exemption.'**    A  schedule  or  inventory  must  have  the  differ- 

sons,     15    Cal.     266;     Albrecht    v.  42  Ala.  460;  Huswell  r.  Parsons,  15 

Treitschke,  17  Neb.  205 ;  Betancourt  Cal.  266. 

V.   Madual,   69  Miss.   839  ("writ  of  a  Perkins  v.  Bragg,  29  Ind.    507; 

inquiry  "  as  to  damages).  State  v.   Manly,   15  id.  8.     But  see 

iHadley  v.    Bryars,    58  Ala.  139;  Haas  v.  Shaw,  91  id.  384. 

Perkins  v.  Bragg,  29  Ind,  507 ;  Mc-  •*  Born   v.    Williams,    81    Ga.    796 ; 

Clure  V.  Brauiff ,  75  la.  38 ;  Kelly  v.  Jacks  v.  Bigham,  36  Ark.  481 ;  Des- 

Dill,    23   Minn.    435;  Hemenway   v.  niond  r.  State,  15  Neb.  438. 

Wood,  53  la.  21 ;  Smith  v.  Chadwick.  »  Parham  v.    McMurray,  33  Ark. 

51  Me.  515;  Colson  v.  Wilson,  58  id.  261. 

416;  Barney  v.  Keniston,  58  N.  H.  ^Baesker  v.   Picket,   81  Ind.   554. 

168;  Graham  r.  Culver,  3  Wyo.  639.  See  Campbell  v.  Gould,  17  id.  133. 

2  Kelly  V.  Dill,  23  Minn.  435;  State  "  Malvin  v.    Christoph,  54  la.  562; 

ex  rel.  Kahoon  r.  Krumpus,  13  Neb.  Griffith  v.  Bailey,  79  Mo.  472;  Wil- 

266;  State  v.  Manly,  15  Ind.  8;  Per-  son  r.  McElroj-,  32  Pa.  St.  82;  Halbe's 

kins  V.  Bragg,    29  id.    507;    Barney  Estate,  9  Pa.  Co.  Ct.  512. 

V.  Keniston,  58  N.  H.  168;    Butt  v.  »  Sherrible  v.  Chaflfee,  17  R.  I.  195. 

Green,   29    Ohio  St,    667 ;    Dow    v.  » State  v.  Carson,  27  Neb.  501. 

Cheney,    103  Mass.    181;    Smith    v.  i"  Ala.    Code,    §2520;    Bledsoe    t\ 

Chadwick,  51  Me.  515 ;  Bell  v.  Davis,  Gary,    95    Ala.    70 ;    Ilutcheson    v. 


500  EXEMPTION.  [§§  728,  729. 

ent  articles  specified  —  not  grouped  under  general  heads.^ 
When  the  defendant  has  filed  his  claim  of  exemption  in  the 
case  and  thus  tendered  the  issue,  it  is  for  the  plaintiff  to  meet 
it  if  he  means  to  persist  in  his  attachment.  He  assents  to  the 
claim  when  he  does  not  deny  it.^ 

§  728.  The  claimant  of  exemption  has  the  burden  of  proof.* 
His  own  testimony  supports  his  plea  if  not  contradicted;  it 
makes  frima  facie  proof.^  And  when  the  plaintiff  contests, 
it  is  held  in  Alabama  that  the  burden  of  proof  is  upon  him 
to  show  that  the  attached  property  is  not  exempt.^ 

When  the  creditor  attaches  he  thereby  admits  that  the 
property  attached  belongs  to  the  debtor:  so  he  is  estopped 
from  proving  that  the  debtor's  claim  of  exemption  is  invalid 
because  the  property  belongs  to  himself  and  was  m  the  debt- 
or's possession  to  be  sold  on  his  (the  plaintiff's)  account.  This 
was  held  when  the  suit  was  to  recover  purchase-money,  and 
the  plaintiff  had  given  bond  to  return  the  property  if  it  was 
not  subject  to  attachment.® 

lY.  Claim  Must  be  Before  Judgment. 

§  729.  General  rule. —  It  has  been  repeatedly  held  that 
after  judgment  in  an  attachment  case  without  any  claim  of 
exemption  having  been  interposed,  the  right  of  exemption  is 
lost;  that  though  the  attachment  might  have  been  vacated 
before,  yet  after  the  lien  upon  the  attached  property  has  been 
perfected  by  judgment,  the  privilege  of  exemption  will  be 
deemed  waived,  and  the  claim  cannot  be  allowed.^ 

Powell,  93  Ala.  619;  Fears  v.  Thomp-  479;  Williams  v.  Link,  64  Miss.  641 ; 
son,  82  id.  294;  Todd  v.  McCravey,  Mudge  v.  Lanning,  68  la,  641;  Sny- 
77  id.  468.  See  Decatur  Mercantile  der  v.  Brune,  22  Neb.  189.  Coin- 
Co.  V.  Deford,  93  id.  347 ;  Ala.  Code,  pare  Todd  v.  McCravey,  77  Ala.  468. 
i<  2533.  4  Muzzy  v.  Lautry,  30  Kan.  49. 

1  Friedman  v.  Sullivan,  48  Ark.  ^  Kolsky  v.  Loveman,  97  Ala.  543. 
213,  ^  Id.  ;  Lehman  v.  Van  Winkle,  92 

2  Young  V.  Louisville,  etc.  R.  Co.,  Ala.  443;  Moses  v.  Noble,  93  id.  593; 
95  Ala.  454.  Field  v.  Langsdorf,  43  Mo.  32 ;  Cross- 

3  Rollins  V.  Allison,  59  Vt.  188;  mann  v.  Rubber  Co.  (N.  Y.),  27  N. 
Bourne  v.  Merritt,  22  id.  429;  Hall  E.  40U;  Bigelow  on  Estop.,  601-4. 
V.  Hartvvell,  142  Mass.  447;  Saunders  See  Tilton  v.  Sanborn,  59  N.  H. 
V.    Robinson,   144  id.   306;  Green  v.  290. 

Watson,    75  Ga.    471;  58  Am.  Rep.        7  Kirk  v.  Cassady  (Ky.),  12  S.  W. 


§  730.]        CLAIM  MUST  BE  BEFORE  JUDGMENT.  501 

The  logical  effect  of  failure  to  set  up  exemption  in  defense 
of  an  attachment  suit  in  which  a  homestead  is  the  res  would 
be  to  preclude  the  debtor  from  claiming  after  judgment. 
This  logical  effect  is  consonant  with  the  rule  that  adjudica- 
tion is  a  bar  to  the  subsequent  pleading  of  any  matter  that 
might  have  been  tried  under  the  issue;  that  anj^thing  that 
might  have  been  set  up  in  defense  is  in  rem  judicatum  after 
the  judgment,  and  therefore  cannot  be  again  drawn  in  ques- 
tion between  the  parties  whose  rights  have  been  litigated.^ 

§  730.  A  different  rule. —  Under  the  statutes  of  some  states 
the  courts  hold  that  no  lien  is  created  on  an  exempt  home- 
stead by  attachment  unless  the  question  of  exemption  is  raised 
and  adjudicated  in  the  proceedings.  In  Texas  '*  it  is  well  set- 
tled that  the  foreclosure  of  an  attachment  does  not  adjudicate 
the  homestead  right  unless  that  issue  is  raised  in  the  suit  in 
connection  with  which  the  attachment  is  foreclosed."  ^  In 
Arkansas  a  debtor  has  been  allowed  to  set  up,  after  judgment, 
that  the  land  attached  was  his  homestead.^  This  was  new  in 
that  state,  but  the  court  cited  prior  cases  as  bearing  upon  the 
matter."*     And  in  Kansas  the  debtor  was  held  not  precluded 

1039;  Dodge  v.  Knight  (Tex.),  16  S.  Davis  v.  Tallot,  13  N.  Y.  184;  Can- 

W.  626 ;  Ward  v.  Wafford  (Tex.  App.),  field  v.  Monger,  13  Johns.  347 ;  Dan- 

26  S.  W.  321;  Haas  v.  Shaw,  91  Ind.  aher  v.   Prentiss,  23  Wis.  299;  Chil- 

384;  Perkins  v.   Bragg,  29  id.  507;  son  v.  Reeves,  29  Tex.  276;  Aurora 

State  V.   Manly,   15   id.  8;  Kelly  v.  City  v.  West,  7  Wall.  83;  Beloit  v. 

Dill,  23  Minn.  435;  Barton  u.  Brown,  Morgan,  id.  619;  Green  v.  Van  Bus- 

68  Cal.  11;  Keybers  v.  McComber,  kirk,    id.    139;   Miller    v.   Sherry,  2 

67  id.  395;  Wilcox  u.  Howe,  59  Hun,  id.    237;    Comparet    v.    Hanna,    34 

268;    Russell  v.    Deane,   30  id.  242;  Ind.  78;  Hereth  v.  Yandes,  id.  103; 

Twaddle   v.   Royers,  14  Phila.   163;  Wright  u.  Dunning,  46  111.  275;  Cole 

Morris   v.   Shafer,    93   Pa.    St.    498 ;  v.    Favorite,  69  id.    457 ;  Moouey  v. 

Blair  u.  Steinman,  53  id.  423;  Strouse  Moriarity,   36   111.    App,    175;Free- 

V.    Becker,    44    id.    306 ;  Colson    v.  man  on  Judgments,  §§  163,  174-6. 

Wilson,     58     Me.     416;     Smith    v.  2Tobar  v.  Losano(Tex.  Civ.  App.), 

Chad  wick,    51    id.    515;    Barney  v.  25  S.  W.  973 ;  Seligson  v.  CoUins,  64 

Keniston,  58  N.   H.  168;  Buzzell  v.  Tex.  315;  Willis  15.  Matthews,  46  id. 

Hardy,  id.  331;  Howard  v.  Farr,  18  479;  Inge  v.  Cain,  65  id.  80;  Willis 

id.  457 ;  Bourne  v.   Merritt,   33  Vt.  v.  Mike,  76  id.  83 ;  Tadlock  v.  Eccles, 

439;  Clapp  v.  Thomas,  5  Allen,  158;  20  id.  790. 

Gay   V.    South  worth,    113   Mass.    38  ^  Robinson  v.  Swearingen,  55  Ark. 

{compare   Copp  v.  Williams,  135  id.  55. 

401,  and  Savage  v.    Davis,   134  id.  *  Reynolds  v.   Tenant,  51  Ark.  87; 

401).  Irwin  v.  Taylor,  48  id.  236;  Richard- 

1  Foster  v.  Milliner,  50  Barb.  393;  son  v.  Adler,  46  id.   43.     Compare 


502  EXEMPTION.  [§§  Y31,  Y32. 

by  failing  to  plead  his  homestead.  Though  he  had  pleaded 
other  defenses,  he  was  not  considered  thereby  to  have  waived 
this.^  In  Colorado  the  sale  of  a  homestead  was  enjoined, 
though  the  debtor  had  not  set  up  exemption  to  dissolve  the 
attachment.^  And  in  Oregon  a  suit  to  recover  exempt  prop- 
erty was  allowed  after  attachment  and  an  order  of  sale.'  - 

Y.  Claiming  Before  Sale. 

§  731.  Hoiv  attacliment  differs  from  an  execution. —  A  gen- 
eral judgment  against  a  debtor  creates  no  specific  lien  and 
perfects  no  such  lien:  so  the  levy  of  an  execution  under  it  is 
the  first  movement  upon  th6  debtor's  property,  and  gives  him 
his  first  opportunity  to  oppose  the  disturbance  of  his  exempt 
property.  He  sets  up  his  claim  to  exemption  after  judgment, 
since  he  could  not  have  done  so  before.  On  the  other  hand, 
the  attachment  suit  begins  by  levying  upon  the  defendant's 
property,  and  the  issue  is  whether  a  lien  is  to  be  perfected 
by  judgment.  So,  there  is  no  analogy  between  the  two  as 
to  the  time  when  exemption  must  be  set  up,  if  at  all.  Un- 
questionably it  may  be  claimed  after  judgment  in  an  ordinary 
suit.  And  a  homestead  may  be  selected  between  such  judg- 
ment and  the  execution  sale.* 

§  732.  If  for  any  reason  the  debtor  has  not  had  an  oppor- 
tunity to  set  up  his  exemption  in  court;  if  he  has  not  waived 
his  right  in  any  way ;  if  his  first  notice  of  attack  upon  his  ex- 
empt property,  or  property  exeraptible  upon  claim,  is  by  the 
levy  of  an  execution,  he  may  demand  his  right  at  any  time 
before  the  sale.^ 

Turner    v.    Vaughan,    33    id.    454;  Brigham,  id.  598;  Totten  t;.  Sale,  7S 

Grubbs  v.  Ellison,  23  id.  287.  id.  488 ;  Stevens  v.  Carson,  27   Neb. 

1  Hoffman  v.  Hill  (Kan.),  28  P.  623 ;  501 ;  Neb.  Civ.  Code,  §  522 ;  Mann  v. 

Morris  v.  Ward,  5  Kan.  239.  Wei  ton,  21   Neb.   541 ;  Hamilton  v. 

2Piersoni;.  Truax,  15  Colo.  223.  Fleming,  26  id.  240  {compare  State 

3  Berry  v.  Charlton,  10  Or.  362.  v.  Wilson,  31  id.  462;  State  v.  Krum- 

^Lessleyu  Phipps,  49  Miss.  790;  pus,  13  id.  321 ;  Kahoon  u.  Krumpus, 

Trotter  v.   Dobbs,  38  id.  198;  Davis  id.  266;  State  v.  Sanford,  12  id.  425); 

V.   Day,   56   Ark.  156.     See  Cohn  v.  Rice  u.  Nolan,  33  Kan.  28;  Shepherd 

Hoffman,  45  id.  376.  v.  Murrill,  90  N.  C.  208;  Surratt  v. 

5  Howard  Ass'n  u.  Reading  R  Co.,  Young,    55    Ark.    447;  Close  r.    St. 

102  Pa.    St.   220;    Wright  v.   Grab-  Clair,  38  Ohio  St.  500. 

f elder,   74    Ala.    460;    Zelnicker    v. 


§§  733,  734.]  CLAIMING    BEFOKE    SALE.  503 

§  733,  TThen  the  exemption  is  not  specific,  but  needs  to  be 
asserted,  if  the  debtor  makes  no  claim  after  bavin";  been  noti- 
tied,  the  officer  may  sell  the  property.^  The  execution  of 
property  merely  exemptible  upon  claim  —  not  absolutely  ex- 
empt —  will  hold  good  in  the  absence  of  claiming.  Or  if  claim 
has  been  made  and  afterwards  withdrawn  there  may  be  sale.^ 
The  privilege  is  personal  and  depends  upon  being  asserted:^ 
so,  if  the  judgment  debtor  fails  to  select  the  chattels  he  may 
choose  as  exempt,  he  cannot  have  their  value  from  the  pro- 
ceeds after  attachment  sale.*  If  he  has  the  right  to  claim  one 
of  two  things,  3^et  fails  to  assert  it,  he  cannot  complain  when 
either  is  attached  and  sold.^  It  will  not  avail  him  to  show, 
after  the  sale,  that  the  property  could  have  been  claimed  as 
exempt.^  I^or  will  it  avail  him  for  the  garnishee  to  set  up 
such  plea  at  this  time.^  It  is  not  for  the  garnishee  to  claim 
for  the  defendant  when  the  latter  is  in  court  and  fails  to  as- 
sert his  own  privilege.^  And  he  should  assert  it  before  final 
judgment  against  the  garnishee.^  But  if  he  has  had  no  notice 
of  the  garnishment,  he  cannot  be  treated  as  having  waived  his 
right  by  not  claiming  it  at  the  usual  time.^'' 

§  734.  Waiver. —  It  is  against  public  policy  for  one  to  re- 
nounce all  right  ever  to  claim  the  benefit  of  the  exemption 
laws,  and  an  agreement  to  that  effect  is  therefore  void.^^  But 
this  rule  does  not  apply  to  waiver  of  exemption  in  an  agree- 
ment when  it  is  part  of  the  consideration,  and  waiver  of  par- 
ticular articles  specified,  and  waiver  of  the  right  to  claim 
when  property  or  credit  has  been  attached.^- 

1  Zeilke  v.  Morgan,  50  Wis.  560 ;  Connpare  Winter  v.  Simpson,  42  Ark. 
Wright  V.  Deyoe,  86  111.  490.  410. 

2  White  Deer  Overseer's  Appeal,       lo  Mace  v.  Heath,  34  Neb.  790. 

95  Pa.  St.  191.  11  Recht  v.  Kelly,  82  111.  147 ;  Phelps 

SLongley  v.    Daly,    1   S.   D.   257;  v.   Phelps,    72  id.    545;    Kneetle   v. 

Comp.  Laws,  §  5126.  Newcomb,  22  N.  Y.  250 ;  Green  v. 

4  Surratt  v.  Young,  55  Ark.  447.  Watson,  75  Ga,  471 ;  Stafford  v.  El- 

5  Davis  V.  Webster,  59  N.  H.  471.  liott,  59  id.  837 ;  Curtis  v.   O'Brien, 

6  Conley  v.  Chilcote,  25  Ohio  St.  20  la.  376 ;  Carter  v.  Carter,  20  Fla. 
320.  Compare  Jewett  v.  Guyer,  38  558;  Branch  t\  Tomlinson,  77  N.  C. 
Vt.  209,  218.  8;  Levicks  v.  Walker,   15  La.  Ann. 

T  Id.  245;  Moxley  v.  Ragan,  10  Bush,  158. 

sCourie  v.  Goodwin,  89  Ala.  569;  Compare  Fogg  v.  Littlefield,  68  Me. 

Ala.  Code,  §  2512.  See  Golden  v.  Con-  52,  and  Brown  v.  Leitch,  60  Ala.  313.' 

ner,  89  Ala.  598.  i2Agnew  r.  Walden,  95  Ala.  108; 

9  Todd  V.  McCravey,  77  Ala.  468.  Ala.  Code  (1886),  §  2083;    Neely  v. 


604 


EXEMPTION. 


[§§  735,  736. 


§  735.  Exeminion  forfeited^  etc. —  A  debtor  may  forfeit  bis 
rigbt  to  claim,  by  absconding;^  and  by  permanent  removal 
from  the  state.^  And  he  has  been  held  to  have  forfeited  his 
right  because  he  was  about  to  leave  the  state  permanently.^ 


YL  Homestead  ISTot  Dedicated  Aftek  Attachment. 

§  736.  Tested  right  of  lien. —  Property  bearing  an  attach- 
ment lien  cannot  be  relieved  of  it  by  being  subsequently  dedi- 
cated as  a  homestead.  The  attaching  creditor  has  a  vested 
right  which  the  debtor  cannot  impair.^  The  inchoate  lien 
created  by  attaching  becomes  perfected  by  judgment  which 
relates  back  to  the  seizure  so  as  to  make  the  lien  a  perfect 
one  from  the  beginning.^  Between  the  date  of  the  prelimi- 
nary levy  and  that  of  the  judgment,  the  lien  cannot  be  dis- 
placed by  the  debtor's  declaration  or  dedication  of  land  at- 
tached to  make  it  his  homestead.^  This  is  true  where  the 
continoent  lien  is  created  bv  the  levy  of  the  attachment.  In 
states  where  the  attachment  lien  must  be  recorded,  the  debtor 
may  dedicate  homestead  before  the  recordation,  as  there  would 
be  no  lien  to  be  displaced,^ 


Henry,  03  Ala.  2C1;  Mynatt  v.  Mc- 
Gill,  3  Lea,  72 ;  Hoisington  v.  Huff, 
24  Kan.  379;  Taffts  v.  Manlove,  14 
Cal.  47 ;  Buzzell  v.  Hardy,  58  N.  H. 
331. 

lYelverton  v.  Burton,  28  Pa.  St. 
351 ;  Steele  v.  Leonori,  28  Mo.  App. 
675,  682;  State  v.  Kurtzeborn,  2  id. 
337 ;  Mahan  v.  Scruggs,  29  Mo.  283. 
The  wife  of  an  absconding  debtor 
may  claim.  Griffith  v.  Bailey,  79 
id.  472. 

2  McHugh  V.  Curtis,  48  Mich.  262. 

3  Stein  V.  Burnett,  43  Mo.  App. 
477. 

*  Kelly  V.  Dill,  23  Minn.  435,  439 ; 
Kressin  v.  Marr,  15  id.  116;  Tuttle  v. 
Howe,  14  id.  145 ;  Avery  v.  Stephens, 
48  Mich.  246 ;  Coolidge  v.  Wells,  20 


id.  79 ;  Watkins  v.  Overby,  83  N.  C. 
165;  Laddr.  Adams,  66  id.  164;  Mc- 
Keithan  v.  Terry,  64  id.  25;  Robin- 
son V,  Wilson,  15  Kan.  595:  Bullene 
V.  Hiatt,  12  id.  98;  Lee  v.  Miller,  11 
Allen,  37;  Elston  v.  Robinson,  21  la. 
531;  Hale  v.  Heaslip,  16  id.  452: 
Tourville  v.  Pierson,  39  111.  447. 

.5  Austin  V.  Stanley,  46  N.  H.  51 ; 
Wright  V.  Dunning,  46  III.  276;  Tut- 
tle V.  Turner,  28  Tex.  773 ;  Tuttle  v. 
Howe,  14  Minn.  145. 

6  Clements  v.  Lacey,  51  Tex.  150; 
Baird  v.  Trice,  51  id.  555  (overruling 
Stone  t'.  Darrell,  20  id.  11):  Mabry  v. 
Harrison,  44  id.  286 ;  Railroad  Co.  v. 
Winter,  44  id.  597 ;  Chipman  v.  Mc- 
Kiuney,  41  id.  76;  Potshinsky  v. 
Krempkan,  26  id.  307 ;  Ryan  v.  Wes- 


7  Hawthorne  u.  Smith,  3  Nev.  185;  Cracken  v.  Harris,  id.  81 ;  Ackley  r. 
Wilson  V.  Madison,  58  Cal.  1 ;  Sulli-  Chamberlain,  16  id.  181 ;  Bowman  r. 
van    V.    Hendrickson,    54    id.    258 ;     Norton,  id.  220. 


§  73 T.J  GARNISHMENT,  AS    TO    CLAIM    OF    EXEMPTION.  505 

YII.  Gaknishment,  AS  TO  Claim  of  Exemption. 

§  737.  General  rule. —  Whatever  is  exempt  from  execution 
is  also  exempt  from  garnishment.^  The  right  must  be  claimed, 
as  in  case  of  attachment,  or  it  will  be  treated  as  waived.  If 
a  judgment  debtor  suffers  property  or  credits  of  his  to  be  sub- 
jected to  garnishment,  making  no  exception  or  objection  till 
the  garnishee  has  been  condemned  to  pay  or  deliver  for  exe- 
cution, his  right  of  exemption  is  lost.^  He  may  claim  the  ex- 
emption of  the  proceeds  paid  into  court  by  the  garnishee,  if 
he  do  so  within  time.' 

When  a  plaintiff  knew  that  in  a  suit  against  himself  in  an- 
other state,  the  defendant  on  being  there  garnished  as  his 
debtor  had  denied  liabilit}''  because  protected  by  exemption, 
to  w^hich  denial  he  (the  present  plaintiff)  had  not  objected,  it 
was  held  that  he  was  concluded.^  It  is  the  right  of  a  gar- 
nishee to  claim  exemption  for  himself  as  against  his  creditor 
(the  attachment  defendant),  who,  if  in  court  and  acquiescing, 
would  be  estopped  from  subsequent  denial  of  the  exemption. 

The  garnishee  who  discloses  his  indebtedness  to  the  defend- 
ant  does  not  become  liable  to  him  for  not  also  disclosing  that 
debt  due  is  exempt,  Avhen  the  defendant  is  in  court  and  may 

sels,  15  la.  145;  Hannahs  v.  Felt,  15  Davenport  v.  Swan,  9  Humph.  186; 

id.  141 ;  Robinson  v.  Wilson,  15  Kan.  Hall  v.  Page,  4  Ga.  428;  Staniels  v. 

595;  Reynolds  v.  Tenant,  51  Ark.  84;  Raymond,  4  Cush.  314;  Andrews  v. 

Richardson  v.  Adier,  46  id.  43;  Pat-  Ludlow,   5  Pick.    28;   Christmas  v. 

rick  V.  Baxter,  42  id.  175 ;  People  v.  Biddle.  13  Pa.  St.  223 ;  Gery  v.  Ehr- 

Cameron,  7111,468;  Peck  u  AVebber,  good,  31  id.   329;  Lyle  v.   Barker,  5 

7  How.  (Miss.)  658;  Carter  r.  Cham-  Binney,    457;  Plant  v.   Sraythe,   45 

pion,  8  Ct.  549 ;  Lyon  v.  Sanford,  5  Cal.  161 ;  Wilson  v.  Bartholomew,  45 

id.  544;  Nash  v.  Farrington,  4  Allen,  I\Iich.  41;  Anderson  v.  Odell,  51  id. 

157;   Hewes  v.    Parkman,   20  Pick.  493. 

90;  Smith  v.  Bradstreet,  16  id.  264;  2  Randolph  v.   Little,  02  Ala.  396 

Perkins  v.   Bragg,  29  id.  507 ;  State  (overruling  Webb  v.  Edwards,  46  id. 

V.   Manly,    15    id.    8;    Berhymer  v.  16);   Buckland  v.    Tonsmire,    90  id. 

Cook,  5  Colo.   395;  Smith  v.  Chad-  503;  White  v.   Hobart,   90  id.   368; 

wick,  51  Me.  515;  Barney  v.  Kennis-  Craft  v.   Louisville,  etc.  Co.,  93  id. 

ton,  58  N.  H.  168;  Hadley  v.  Bryars,  22;  Schier  v.  Dankwardt  (la.),  56  N. 

58  Ala.  139;  Wright  v.  Westheimer,  W.  420. 

2  Idaho,  962;  Rev.  Stat,  of  Idaho,  ^Marchidon    v.    O'Hara,    52    Mo. 

§§  3071,  3072,  3038,  3039.  App.  523,  526. 

1  Flour naj'  v.  Lyon,  62  Ala.  213;  ■*  Chicago,  etc.  v.  Meyer,  117  Ind. 

Fanning  v.  First   Nat.   Bank,  76  111.  563. 
53;  Holbrook  v.   Baker,  5  Me.  309; 


506  EXEMPTION.  [§§  T3S,  739. 

set  up  the  claim  himself.^  The  garnishee  may  plead  it  for  the 
defendant,-  or  the  latter  may  claim  it  for  himself  when  the 
trarnishee  files  his  answer.^ 

§  738.  Garnishee  sliould  disclose  exemiition. —  The  garnishee 
who  fails  to  disclose  exemption  when  the  fact  is  within  his 
knowledge,  and  when  the  defendant  is  not  present  to  claim  it 
himself,  may  render  himself  liable  to  account  to  the  defend- 
ant after  payment  into  court;  for  he  ought  to  disclose  it;*  and 
he  cannot  deprive  the  defendant  of  his  right  against  himself 
by  failing  to  do  so.^  He  may  plead  that  the  debt  he  owes  is 
contingent,^  or  he  may  plead  payment  in  another  state,'^  and 
effect  his  discharge  in  either  case;  or  plead  the  immaturity  of 
the  debt  with  like  result.^  After  being  charged,  he  cannot  have 
the  order  set  aside  on  Gertiorari  in  the  supreme  court  on  the 
ground  that  money  for  which  he  was  garnished  w^as  exempt.^ 

§  739.  Thouo-h  a  fixed  amount  of  monev  cannot  be  readied 
in  the  garnishee's  hands  when  he  has  disclosed  that  it  is  ex- 
empt,^"  and  his  answer  is  not  disproved  on  traverse,  yet  it  may 
become  liable  on  change  of  condition:  as  when  it  is  exempt 
as  bounty  before  payment,  it  may  be  liable  afterwards  in  the 
hands  of  a  borrower  when  he  is  garnished. ^^     This  may  be 

1  Turner  v.  Sioux  City,  etc.,  19  Winterfield  u.  Railway,  29  Wis.  589 ; 
Neb.  341.  Daniels   v.  Man,  75   Me,  397;  Jones 

2  Union  Pac.  R.  Co.  v.  Smersh,  23    v.  Tracy,  75  Pa.  St.  417. 

Neb.  751;  Emmons  v.  Southern  Tel.  6  Fellows  v.  Smith,  131  Mass.  363; 

Co.,  80  Ga.  760.  Mass.  Gen.  Stat.,  ch.  143,  §§  34-26. 

3  Kuhn  V.  Bank  (Pa.),  11  A,  440.  ^  Chicago,    etc.    R.    Co.    v.    Moore 

4  Walker  v.  Hintze,    16  111.  App.  (Neb.),  48  N.  W.  475. 

326;  Chicago,  etc.  v.  Mason,  11  id.  §  House   v.   Bait.    etc.    R.    Co.,  48 

525 ;  Chicago,  etc.  u  Ragland,  84  111.  Md.  130;   Moore  v.   Heaney,  14  id. 

375 ;  Missouri  Pac.  R.  Co.  v.  Whips-  563.   See.  First  Nat.  Bank  v.  Jaggers, 

ker,  77  Tex.  14,  17 ;  Burke  v.  Hance,  31  id.  51. 

76  id.  83 ;   Mull  v.  Jones,  33  Kan.  ^  State  v.  Bermudez  (La.  Ann.),  3 

113;  Smith   v.  Dickson,  58  la.  444;  So.  435. 

Field  V.  McKinney,  60  Miss.  763;  i"  Pierce  u.  Chicago,  etc.  R.  Co.,  36 
Terre  Haute,  etc.  R.  Co.  v.  Baker,  Wis.  283;  Winterfield  v.  Milwaukee, 
133  Ind.  433;  Fletcher  v.  Ware,  81  etc.  R.  Co.,  39  id.  589;  Chilcote  v. 
Mo.  534;  Mace  v.  Heath,  34  Neb.  Conley,  36  Ohio  St.  545;  Lock  v. 
790;  Crai't  v.  Hubbard,  93  Ala.  32;  Johnson,  36  Me.  464;  Clark  v.  Avar- 
Daniels  V.  Murr,  75  Me.  397;  Union  ill,  31  Vt.  513;  Chicago,  etc.  R.  Co. 
Pac.  R.  Co.  V.  Smersh,  83  Neb.  751 ;  v.  Mason,  11  111.  App.  535.  Compare 
Eaimons  v.  Southern  Tel.  Co.,  80  Osborne  v.  Schutt,  67  Mo.  713;  Ran- 
Ga.  760.  dolph  v.  Little,  63  Ala.  396. 

5  Railway  u.  Ragland,  84  111.  375;  n  Manchester  v.  Burns,  45  N.  H. 


§§  7-10-7-12.]       GARNISHMENT,  AS    TO    CLAIM    OF    EXEMPTION.         507 

further  illustrated  by  reference  to  pensions  from  the  govern- 
ment. 

§  740.  Fensions. —  Though  pensions  from  the  United  States 
are  protected  from  attachment  or  execution  while  passing  to 
the  recipient,  they  may  be  reached  by  the  garnishment  of 
subsequent  holders,  in  most  of  the  states.  That  is,  after  they 
have  been  paid  to  the  pensioner,  the  money  may  be  subjected 
to  the  process  when  it  is  found  in  the  possession  of  a  third 
person.^  But  a  pension  check,  in  bank  for  collection,  is  not 
attachable,  and  the  bank  is  not  garnishable;  nor  are  the  pro- 
ceeds of  the  check  after  collection,  though  credited  to  the 
pensioner  —  for  the  pension  money  has  not  yet  come  to  his 
hands.^     The  writer  has  treated  this  topic  elsewhere.^ 

§  741.  Wages. —  If  exempt  w^ages  are  sought  to  be  attached 
by  the  garnishment  of  the  debtor's  employer,  and  he  has  not 
disclosed  their  non-liability  when  the  fact  is  within  his  knowl- 
edge, the  laborer  does  not  lose  them ;  he  may  recover  of  his 
employer.*  But  if  he  has  been  notified  and  the  wages  are 
paid  into  court  under  the  garnishment  order,  by  reason  of  his 
own  laches,  he  should  have  no  recourse  on  the  garnishee. 

A  garnished  railroad  company  disclosed  that  it  owed  the 
defendant  wages  earned  within  ninety  days  of  the  garnish- 
ment service,  and  that  it  was  informed  and  did  believe  that 
the  defendant  was  a  married  man  living  with  his  family. 
The  court  held  the  answer  not  sufficient  to  prove  that  the  de- 
fendant was  the  head  of  a  family  and  therefore  not  sufficient 
to  show  that  the  wages  or  earnings  were  exempt.^ 

§  742.  Wages  and  salaries,  when  exempt  fi'ora  garnishment 
in  execution  after  judgment,  are  also  exempt  from  attachment 
garnishment.^ 

483;  Brown  v.  Heath,  id.  168;  Woos-  3  in  his  Horn.  &  Exemp.,  pp.  837- 

ter  V.  Page,  54  N.  H.  125  (insurance  846. 

money  for  exempt  house).  <  Smith  v.  Johnston,  71   Ga.  748; 

1  Clark  V.  lugraliam,  15  Phila.  646 ;  Albrecht  v.  Treitschke,  17  Neb.  205 ; 

Hozella  u.   Rliodes,  116  Pa.  St.   129;  Crisp  v.   Fort  Wayne,    etc.    R.    Co. 

Jardain  i;.  Association,  44  N.  J.   L.  (Mich.),    57   N.    W.    1050;    Howell's 

376;  Spehnau  v.  Aldrich,  126   Mass.  Stat.,  §g  8032,  8037;  HaswelU'.  Par- 

113;  Adams  v.  Newell,  8  Vt.    190;  sons,  15  Cal.  266. 

Foster  v.  Byrne,  76  la.  295;  Baugh  s Smith  v.  Chicago,  etc.  R.  Co.,  60 

V.  Barrett,    69  id.   495;    Triplett  v.  la.  312. 

Graham,  58  id.   135;  Friend  u.  Gar-  ^>  Wages  not  yet  due,  and  ten  dol- 

celon,  77  Me.  25;  U.  S.  R.  S.,  §  4747.  lars  of  those  due  in  each  case,  are 

2Reifif  V.  Mack  (Pa.),  28  A.  699.  exempt  from  garnishment  in  Mary- 


508 


EXEMPTION. 


[§  'TiS. 


An  attorne3^'s  fees  are  not  exempt,  as  wages,  from  garnish- 
ment,^ though  the  opposite  was  held  as  to  a  ph^^sician's  bill.- 
A  policeman's  order  on  a  city  for  wages  was  held  not  subject 
to  garnishment.*  Where  the  wages  of  workmen  were  exempt,  a 
mechanic  who  had  his  own  shop  was  not  protected.*  Factors" 
and  brokers'  commissions  are  not  wages  and  not  exemptible 
as  such,  but  those  of  commercial  travelers  are  not  subject  to 
garnishment  in  the  hands  of  the  emplo3^er.  This  distinction 
between   the  commissions  of  factors  and   those  of  travelin<r 


land.  Mel.  Code,  art.  10,  §  36;  House 
V.  Baltimore  &  Ohio  R.  R.  Co.,  48 
Md.  130.  Salaries  of  public  officers 
cannot  be  subjected  to  garnishment 
in  Alabama,  though  g  2948  of  its  Re- 
vised Code  provides  for  the  attach- 
ment of  money  in  the  hands  of  a 
sheriff  or  other  officer.  Pruitt  v. 
Armstrong,  5G  Ala.  306.  Wages 
liable  in  Georgia  in  a  suit  for  pro- 
visions furnished,  notwithstanding 
the  pending  of  prior  garnishment. 
Dunlap  V.  Hooper,  67  Ga.  731.  In 
Minnesota  $25  earned  within  thirty 
days  is  exempt  from  execution,  at- 
tachment and  garnishment.  Bean 
V.  Insurance  Co.  (Minn),  56  N.  W. 
127;  Gen.  Laws  1889,  ch.  204.  In 
Wisconsin  the  statute  exempting 
sixty  days'  earnings  of  a  debtor  who 
has  a  family  to  support  is  inappli- 
cable to  non-i-esident  debtors.  Com- 
mercial Bank  v.  Chicago,  M.  &  St.  P. 
R.  R.  Co.,  45  Wis.  172.  In  New 
York  sixty  days'  wages  are  exempt. 
Mcpullough  V.  Carragan,  24  Hun, 
157.  In  Maryland  all  beyond  a  hun- 
dred dollars  of  wages  due  may  be 
attached.  Hagerstown  Bank  v, 
Weckler,  52  Md.  30.  See  Iowa  Code, 
t,  3074 ;  Shelly  v.  Smith,  59  la.  453. 
In  Moore  v.  Chicago,  etc.  R.  R.  Co., 
43  la.  385,  a  railroad  company  was 
held  not  bound  to  plead,  when  sum- 
moned as  garnishee  in  Missouri,  that 
a  railroad  employee's  wages  are 
exempt  in  Iowa.  Wages  of  guests 
upon  which  the  hotel-keeper   has  a 


lien  by  statute  cannot  be  subjected 
to  garnishment.  Rischert  v.  Knnz, 
9  Mo.  App.  283.  Wages  to  the 
amount  of  $25  are  exempt  in  Illinois 
(Chicago,  etc.  R.  R.  Co.  v.  Ragland, 
84  111.  375;  Bliss  v.  Smith,  78  id.  359), 
whether  the  debtor  is  a  resident  or 
not,  if  he  is  the  head  of  a  family. 
Mineral  Point  R.  R.  Co.  v.  Barron, 
83  111.  365.  In  Ohio  three  months' 
wages  are  exempt,  if  necessary  for 
family  support.  Snook  v,  Snetzer, 
25  Ohio  St.  516.  In  Massachusetts 
the  wages  of  a  seaman  on  an  Atlan- 
tic coasting  voyage  are  not  exempt. 
White  V.  Dunn,  134  Mass.  271.  In 
Maine:  Ayer  v.  Brown,  77  Me.  195. 
But  owners  of  a  coasting  vessel, 
summoned  as  trustees  of  seamen, 
will  not  be  charged  if  they  have  al- 
ready been  condemned  to  pay  the 
wages  to  another  claimant,  by  a  de- 
cree in  admiralty.  Eddy  v.  O'Hara, 
132  Mass.  56.  A  teacher's  earnings 
held  liable.  Bates  v.  Bates,  74  Ga. 
105.  A  wife's  earnings  may  be 
claimed  by  her  by  way  of  interven- 
tion, when  they  have  been  attached 
by  garnishment  in  a  suit  against  her 
husband.  King  v.  Bird  (la.),  52  N. 
W.  494. 

1  First  N.  Bank  v.  Graham  (Tex.), 
22  S.  W.  1101. 

2Sydnor  v.  Galveston  (Tex.),  15 
S.  W.  202. 

3  Craft  V.  Sunmiersell,  93  Ala.  430. 

4  Tatum  V.  Zachry,  86  Ga.  573, 


743.] 


GARNISHMENT    IN   A   FOREIGN    STATE. 


i09 


salesmen,  as  to  whether  they  are  wages,  is  recognized  in 
Pennsylvania.^  Wages  cannot  be  reached  by  garnishment 
when  they  are  not  due,^  nor  when  they  have  been  paid  or  as- 
signed in  advance,'  nor  when  they  have  been  earned  after  the 
summons  of  the  employer  as  garnishee.*  In  Georgia  the 
salary  of  a  railroad  officer  is  exempt  up  to  the  sum  of  five 
hundred  dollars.^  It  is  against  public  policy  to  permit  the 
subjection  of  official  salaries  to  garnishment.^ 


YIII.  Garnishment  in  a  Foreign  State. 

§  TiS.  Injunction. —  Creditors  residing  in  the  state  of  their 
debtors  have  been  enjoined  from  garnishing  the  latter's  debt- 
ors in  another  state. ^  The  injunction  is  authorized  by  statute 
in  several  states.  And  there  is  statutory  inhibition  of  the  as- 
signment of  claims  to  one  living  in  another  state  for  the  pur^ 
pose  of  his  bringing  suit  upon  them  there  to  avoid  exemption. 
This  is  held  not  contrar}'  to  the  constitution.^  And  it  has 
been  held  that  judgments  obtained  in  another  state  whose 
laws  are  contrary  to  those  of  the  home  state  as  to  exemption, 


1  Hamburger  v.  Carr  (Pa.),  37  A. 
680. 

2  Edwards  v.  Roepke,  74  Wis.  571; 
Burlington  R.  Co.  i'.  Thompsou,  31 
Kan.  180. 

3  Manly  v.  Bitzer  (Ky.),  16  S.  W. 
464:  Alexander  v.  Pollock,  73  Ala. 
137:  Reinhart  v.  Soap  Co.,  33  Mo. 
App.  24;  Denver,  etc.  R.  Co.  v. 
Smeeton,  2  Colo,  App.  136;  Boyd  v. 
Brown,  120  Ind.  393;  Chicago,  etc. 
R.  Co.  V.  Blagden,  33  111.  App.  2J4; 
Tiernay  v.  McGarity,  14  R.  I.  231. 
See  Buschman  v.  Hanna,  73  Md.  1 ; 
Spengler  v.  Kaufman,  46  Mo.  App. 
644. 

4  Sanborn  v.  Ward,  04  N.  H.  611; 
Thomas  v.  Gibbons,  61  la.  50. 

5  Kyle  V.  Montgomery,  73  Ga.  337; 
Bailee  v.  Mosher,  73  id.  740. 

6  Oliver  v.  Athey,  11  Lea,  149. 
"Cunningham  v.  Butler,  143  Mass. 

47;  Dehon   v.   Foster,    7   Allen,   .57; 
Cole  V.  Cunningham,  133  U.  S.  107; 


Zimmerman  i\  Franke,  34  Kan.  6o0; 
Missouri  R.  Co.  v.  Maltby,  34  id. 
125;  Stack  v.  Bare,  39  id.  100;  Engel 
V.  Scheuerman,  40  Ga.  206 ;  Griffith 
V.  Langsdale,  53  Ark.  73 ;  Pickett  v. 
Ferguson,  45  id.  177:  Keyser  v.  Rice, 
47  Md.  203;  Snook  v.  Snetzer,  25 
Ohio  St.  516;  Kestler  v.  Kern,  3  Ind. 
App.  488,  distinguishing  Upping- 
house  V.  Mundel,  103  Ind.  2-38;  Wil- 
son V.  Joseph,  107  id.  490:  State  v. 
Dittmar,  120  id.  54;  Ind.  Rev.  Stat. 
1881,  §§  2163-3;  Mumper  v.  Wilson, 
73  la.  163;  Hager  v.  Adams,  70  id. 
746;  Teagarv.  Landsley,  69  id.  735; 
Wabash  R.  Co.  v.  Seifert,  41  Mo. 
App.  35;  Todd  V.  Railroad,  33  id. 
110;  Fielder  v.  Jessup,  34  id.  91; 
Wyeth,  etc.  Co.  v.  Lang,  53  id.  147. 
See  Pierce  v.  Chicago,  etc.  R.  Co.,  36 
Wis.  283;  Missouri  Pac.  R.  Co.  v. 
Siiaritt,  43  Kan.  375. 

8  Sweeny  v.    Hunter,  145  Pa.  St. 
363;  U.  S.  Const.,  art.  4,  §2. 


510  EXEMPTION.  [§  744-. 

and  whose  courts  were  sought  to  avoid  exemption  which  the 
debtor  could  have  claimed  successfully  in  his  own  state,  may 
be  disregarded  when  sought  to  be  enforced  in  the  home  state, 
or  when  set  up  against  a  claim  by  the  debtor  in  his  own  state; 
and  that  such  disregard  is  not  violative  of  the  rule  of  comity, 
or  of  the  constitutional  provision  requiring  full  faith  and 
credit  to  be  given  in  one  state  to  the  judgments  of  another.^ 
"The  courts  of  one  state  will  not  restrain  a  citizen  of  that 
state  from  suing  another  citizen  by  attachment  in  a  foreign 
jurisdiction  unless  such  proceeding  clearl}'"  contravenes  tho 
policy  of  some  local  law  or  statute  to  which  both  parties  owe 
obedience  by  reason  of  their  common  citizenship."  ^  Distinc- 
tion has  been  made  between  money  and  propertj'',  with  refer- 
ence to  exemption  from  attachment  and  garnishment.  Mone\'' 
was  successfully  attached  in  the  hands  of  a  garnishee  in  Illi- 
nois, though  exempt  in  the  state  of  the  contract  sued  upon.^ 
§  744.  Situs  of  tlie  debt. —  When  wages  are  exempt  in  the 
attachment-defendant's  state,  but  are  attached  in  another  state, 
by  garnishment,  where  no  jurisdiction  is  obtained  over  his 
person,  it  is  held  that  if  the  debt  follows  the  garnishee  into 
that  state,  the  exemption  accompanies  it.*  But  the  court  try- 
ing the  cause  may  not  recognize  exemption  as  an  "incident" 
following  the  debt  across  state  lines;  it  may  not  give  effect  to 
the  exemption  laws  of  a  state  foreign  to  its  jurisdiction.  It 
has  been  held  that  it  cannot.^     Comity  does  not  require  it  to 

1  Martin  v.  Cent.  Vt.  Ry.  Co.,  50  point:  Wright  v.  Railroad  Co.,  19 
Hun,  354;  Osgood  v.  Maguire,  61  Neb.  175;  Turner  u.  Railroad  Co.,  id. 
N.  Y.  529.  241;  DeWitt  v.   Machine  Co.,  17  id. 

2  Schindelholz  v.  Cullum,  55  Fed.  533;  Railroad  Co.  v.  Dooley,  78  Ala. 
887;  Barnett  v.  Kinney,  147  U.  S.  524;  Pierce  v.  Railway  Co.,  36  Wis. 
476;  Warner  v.  Jaflfray,  96  id.  248;  283 ;  Bayliss  v.  Houghton,  15  Vt.  626; 
Dehon  t?.  Foster,  4  Allen,  545;  Jenks  Tingley  v.  Bateman,  10  Mass.  343; 
V.  Ludden,  34  Minn.  482,  487.  Railroad  Co.  v.  Maltby,  34  Kan.  123; 

3  Roch  V.  R.  I.  Ins.  Co.,  2  111.  App.  Lovejoy  v.  Albee,  33  Me.  414;  Ham- 
360.  See  Nichols  v.  Goodheart,  5  id.  ilton  v.  Rogers,  67  Mich.  135.  It  is 
574.  It  is  said  that  the  exemptionist  held  in  Missouri  that  contracts  re- 
must  be  prompt  if  he  would  plead  specting  debts  and  personal  property 
the  exemption  of  money  from  gar-  have  no  situs,  but  follow  the  owner, 
nishment.  Iliff  v.  Arnott,  31  Kan.  Wyeth,  etc.  Co.  v.  Lang,  53  Mo. 
673.  App.   147.     Contra,  Keating  v.  Re- 

4  Drake  v.  Lake  Shore,  etc.  R.  Co  ,  frigerator  Co.,  32  id.  292. 

69  Mich.  168,  179.     The  court  roliod        5  Mooney  v.    Railroad  Co.,  60  la. 
upon    the   following  cases  on  this    346;  Broadstreet  t\  Clark,  65  id.  670. 


§  745.]  GAKNISHMENT   IN   A   FOEEIGN    STATE.  511 

give  them  effect.  So  it  is  held  that  in  a  suit  against  a  non- 
resident, a  garnishee  cannot  get  discharge  by  showing  that 
liis  debt  to  the  defendant  is  exempt  in  the  state  where  the  de- 
fendant resides.^  But  if  exempt  where  the  action  is  brought, 
the  garnishee  should  be  discharged,  though  the  defendant  be 
a  non-resident.^ 

§  745.  Practice  in  different  states. —  In  Iowa  exemption  from 
garnishment  b}'-  the  laws  of  another  state  cannot  be  pleaded 
unless  what  is  due  by  the  garnishee  is  also  exempt  by  the 
laws  of  Iowa.'  So  in  West  Yirginia.^  In  Nebraska  the  as- 
siirnor  of  a  claim  to  an  assignee  in  another  state  to  be  collected 
there  by  the  garnishment  of  a  railroad  compan}'  for  a  labor- 
er's wages  exempt  at  home,  was  held  liable  to  the  laborer  for 
the  amount  thus  collected.^  A  foreign  corporation  doing 
business  in  that  state  attached  the  earnings  of  a  Kebraskan 
(which  were  exempt  at  home)  by  garnishment  in  Iowa.  The 
corporation  was  sued  in  Nebraska  for  damages,  and  it  was 
held  that  the  situs  of  the  earnings  was  not  in  Iowa  but  in  the 
exemptionist's  state,  and  that  the  corporation  was  liable.*'  But 
when  the  exemption  law  of  the  debtor's  state  and  that  of  the 
state  of  the  forum  are  alike,  the  claim  may  be  successfully 
made;  for,  in  enforcing  the  laws  of  the  one,  the  court  enforces 
those  of  the  other  state.'  If  the  wages  or  debt  is  made  pay- 
able in  one  state  only,  it  cannot  be  subjected  to  garnishment 
in  another,  unless  the  principal  defendant  consents.^  For- 
merly in  Illinois  (but  not  since  1S91),  wages  due  by  a  corpo- 

1  Burlington,  etc.  R.  Co.  v.  Thomp-  3  Leiber  v.  Union  Pac.  R.  R.  Co.,  49 
son,  31  Kan.  180;  Stevens  r.  Brown,     la.  688. 

20  W.  Va.  450 ;  Morgan  v.  Neville.  74  *  Stevens  v.  Brown,  20  W.  Va.  451. 

Pa.  St.  53:  Carson  v.  Railway  Co.,  5  O'Connor  u.  Walter,  37  Neb.  267. 

88  Tenn.  646;  Mineral  Point  R.  Co.  ^gingei-  Manuf'g  Co.    v.   Fleming 

V.  Barron,  83  111.  365;  Moore  v.  Rail-  (Neb.),  58  N.  W.   226;  Laws  of  1889, 

road  Co.,  43  la.  385.  ch.  35;  Mason  v.  Beebee,  44  Fed.  556. 

2  TMissouri  Pac.  R.  Co.  v.  Maltby,  ^  Kestler  v.  Kern,  2  Ind.  App.  488 ; 
34  Kan.  125;  Kansas  City,  etc.  R.  Railroad  Co.  v.  Baker,  123  Ind.  433; 
Co.  V.  Gougb,  35  id.  1;  Wrigbt  v.  Drake  r.  Lake  Shore R.  Co.,  69  Mich. 
Railroad  Co.,  19  Neb.  175;  Mineral  168;  Kansas  City,  etc.  R.  Co.  v. 
Point  R.  Co.  r.  Barron,  83  111.  308;  Gough,  35  Kan.  1,  distinguishing 
Haskell  v.  Andrews,  4  Vt.  609;  Hill  Burlington,  etc.  R.  Co.  v.  Thompson, 
V.    Looniis,   6  N.    H.   263;  Lowe  r.  31  Kan.  180. 

Stringham,  14  Wis.  222;  Sproul  v.  ^Com'I  N.  Bank  v.  Chicago,  etc. 
:McCoy,  26  Ohio  St.  577.  R.  Co.,  45  Wis.  172. 


512  EXEMPTION.  [§  745. 

ration  to  a  non-resident  could  be  reached  by  garnishment, 
though  exempt  at  the  home  of  the  laborer.^  Though  prop- 
ert3%  wages,  etc.,  be  exempt  to  a  given  point,  the  excess  is  at- 
tachable; and  evidence  may  be  received  not  only  as  to  the 
question  of  exemption  but  also  as  to  the  amount.- 

1  Wabash  v.  Dougan,  142  111.  248 ;  2  George  v.  Fellows,  60  N.  H.  398 ; 

Railroad  Co.  v.   Barron,  83  id.  365,  Adams  u.  Bushey,  id.  290;  First  N. 

As  to  the  rule  in  Tennessee,  see  Mo-  Bank  v.   Weckler,    52   Md.    30,  42; 

bile,  etc.  R.  Co.  v.  Barnhill  (Tenn.),  Sims  v.   Eslava,   74  Ala.  594.    See 

19  S.  W.  21 ;  Holland  v.  Railroad  Co.,  Menzie  v.  Kelly,  8  111.  App.  259. 
16  Lea,  414. 


CHAPTER  XIX. 

THE  DEFENDANT'S  BONDS. 

I.  The  Forthcoming  Bond §§  746-761 

II.  The  Dissolution  Bond 762-769 

III.  Bond  Sureties 770-777 

I.    The  Forthcoming  Bond. 

§  746.  Made  to  tlie  slieriff. —  The  sheriff,  instead  of  retain- 
ing the  attached  property  in  his  actual  possession,  ma}'^  intrust 
it  to  the  defendant,  taking  from  him  a  forthcoming  bond,  by 
which  the  latter  binds  himself,  with  one  or  more  sureties,  to 
pay  a  certain  sum,  on  the  condition  that  if  he  shall  return  the 
attached  property  to  the  sheriff  for  execution,  in  case  judg- 
ment shall  be  rendered  afjainst  him,  the  obligation  shall  be 
void,  but  otherwise  to  remain  in  full  force  and  effect.  On 
such  a  bond,  after  failure  to  deliver  upon  demand,  if  demand 
is  required  by  the  terms,  or  on  faihire'to  deliver  for  execution 
without  demand,  when  none  is  requisite,  the  plaintiff,  upon 
transfer  to  him  by  the  sheriff,  may  recover  of  the  principal 
or  of  the  surety  the  value  of  the  propert}'  when  the  bond  was 
taken,  provided  the  value  does  not  exceed  the  amount  of  the 
judgment,  interest  and  costs.  The  value  of  the  goods  bonded 
being  less  than  the  amount  of  the  judgment,  the  sureties  are 
held  only  for  the  former,  if  the  terms  of  the  bond  bind  them  to 
the  value.^  They  have  been  held  liable  for  the  value  of  (^oods 
destroyed,  though  other  goods  were  substituted;-  though  they 
should  not  be,  if  the  plaintiff  consented  to  the  substitution. 
AVhen  the  bond  is  fjiven  for  double  the  value,  the  obliofees 
cannot  be  relieved  by  paying  half,  if  that  is  not  the  real  value.^ 

1  Pearce  v.  ]Maguiro  (R.  I.),  20  A.        2  Pearce  v.  Maguire,  supra;  Dog- 
98 ;  Schuyler  v.  Sylvester,  28  N.  J.  L.     gett  v.  Black,  40  Fed.  439. 
487 ;  Perry  r.  Post,  45  Ct.  354 :  Packet        nioon  r.    Story,  2   B.  Mon.  354; 
Co.  V.  Robertson,  13  Minn.  291 ;  Baker    Collins  v.  Mitchell,  3  Fla.  4. 
V.  Morrison,  4  La.  Ann.  372;  Welsh 
V.  Barrow,  9  Rob.  (La.)  535. 
33 


514  defendant's  bonds.  [§§  747-749. 

§  747.  The  sheriff,  by  intrusting  the  property  to  the  defend- 
ant under  such  bond,  does  not  lose  his  legal  possession  of  it. 
The  defendant  holds  under  the  sheriff,  so  that  the  res  is  still 
in  the  constructive  possession  of  the  court.  The  attachment 
proceeding  in  the  suit  does  not  end  by  virtue  of  the  forthcom- 
ing bond,^  which  would  inevitably  be  the  case  were  the  court 
to  lose  its  custody  and  jurisdiction  of  the  property,  and  the 
defendant  to  regain  unqualified  possession  of  it.  As  the  bond 
recites  that  attachment  was  levied,  the  obligors  cannot  deny  it.^ 

§748.  Lien  2)reserved. —  However  difficult  it  would  be  to 
follow  the  released  property  through  several  successive  hands 
(should  it  be  repeatedly  sold),  to  vindicate  the  attachment 
lien  upon  it,  it  is  well  settled  that  the  lien  is  not  lost  by  the 
delivery  of  attached  property  to  the  defendant  under  a  forth" 
coming  bond.^  The  attachment  is  not  discharged.'*  "When 
the  terras  are  that  the  bonded  goods  shall  be  subject  to  the 
order  of  court,  the  lien  remains.^ 

Here  is  the  marked  difference  between  the  forthcoming 
bond  and  the  bond  to  dissolve  attachment:  the  first  leaves 
the  attachment  intact,  but  the  second  dissolves  it  and  reduces 
the  suit  to  a  personal  proceeding;  the  obligation  of  the  forth- 
coming bond  is  to  return  the  property  for  execution,  wliile 
that  of  the  dissolution  bond  is  to  pay  whatever  judgment  may 
be  rendered.  The  former  is  not,  but  the  latter  is,  a  substitute 
for  the  attachment.^ 

§  749.  The  forthcoming  bond  is  taken  by  the  sheriff  as  his 
own  official  act,  and  the  obligation  of  the  principal  and  surety 
on  the  bond  is  usuallj^  to  him.^     The  taking  is  not  the  act  of 

1  Avet  V.  Albro,  21  La.  Ann.  349;  *  Drake  i'.  Sworts(Oreg.),  33  P.  563: 
Tyler  v.  Safford,  24  Kan.  580;  Hil-  Kolni  v.  Hinshaw,  17  Oreg.  308; 
ton  V.  Ross,  9  Neb.  406.  Schneider      v.     Wallingford    (Colo. 

2  Price  r.  Kennedy,  16  La.  Ann.  App.),  34  P.  1109;  Stevenson  v. 
78;  Crisman  u.  Matthews,  2  III.  148.  Palmer,  14   Colo.  565,  567;  Joslin  v. 

3  Roberts  u  Dunn,  71  111.  46;  Scar-  Spangler,  13  id.  491;  Speelman  v. 
borough  V.  Malone,  67  Ala.  570;  Chaffee,  5  id.  247;  Hagan  v.  Lucas, 
Evans  v.  King,  7  Mo.  411;  Jones  v.  10  Pet.  401;  Forbes  v.  Navra,  63 
Jones,  38  id.  429;  Gray   r.  Perkins,  Miss.  1. 

12    Smedes    &    M.    622;   Gordon  v.  5  Hobson   u.  Hall   (Ky.),  14  S.  W. 

Johnston,  4  La.  304;  Kirk  v.  Morris,  958. 

40  Ala.  225 ;  Rives  v.  Wilborne,  6  id.  «  Eddy  v.  Moore,  23  Kan.  113 ;  Peo- 

45 ;  McRae  v.  McLean,  3  Porter  (Ala.),  pie  v.  Cameron,  7  III.  468. 

138;  Boyd  V.  Buckingham,  10  Hum-  ^  Forrest  v.    O'Donnell,    42  Mich. 

phreys  (Tenn.),  434.  556;  Cooper  v.  Peck,   22  Ala.  406; 


§  750.]  THE  FORTHCOMING  BOND.  515 

the  court  or  of  the  plaintiff,  and  therefore  it  does  not  put  the 
property  beyond  the  legal  possession  of  the  court  so  as  to 
divest  jurisdiction  over  it  as  a  thing  attached.  On  the  other 
hand,  the  taking  of  the  bond  to  dissolve,  and  the  delivery  of 
the  property  to  the  defendant  pursuant  thereto,  destro3''S  the 
plaintiff's  lien,  divests  the  court  of  the  legal  and  even  of  the 
constructive  possession  of  it;  and,  as  before  observed,  reduces 
the  whole  proceeding  to  a  personal  suit  against  the  defendant. 
The  debtor  is  necessarily  deemed  to  have  made  an  appearance 
<and  to  have  become  personally  amenable  when  he  bonds.  If 
he  has  not  regularly  appeared  upon  the  record,  and  has  not 
even  been  summoned,  his  coming  to  bond,  even  by  attorney, 
gives  jurisdiction  over  him. 

§750.  Form. —  A  form  prescribed  by  statute  ought  to  be 
followed ;  but  the  obligors  cannot  avoid  their  obligation  be- 
cause some  other  verbiage,  not  inhibited,  has  been  used  in 
drawing  the  bond.^  Clerical  errors  will  not  invalidate  it,  if 
they  are  not  such  as  to  mislead  the  obligors,  or  such  as  to  ren- 
der the  terms  ambiguous  and  unintelligible.'  Though  signed 
in  blank,  with  consent  that  the  sheriff  may  fill  it  up,  the  bond 
will  hold  good  if  written  out  by  him  over  the  names  of  the 
obligors,  in  the  terras  assented  to,  and  pursuant  to  the  require- 
ments of  the  law,  and  acknowledged  by  the  obligors.*  An 
instrument  may  be  good  as  a  common-law  bond,  though  not 
written  in  the  terms  of  the  attachment  statute.*  It  has  been 
held,  however,  that  a  paper  signed  in  blank,  with  verbal  au- 
thority to  fill  it  up,  is  void  when  filled  by  the-  person  so  au- 
thorized, unless  the  signer  afterwards  acknowledges  it.^ 

Braley  v.  Clark,  id.  361.    The  sheriff  3  Hill  v.  Scales.  7  Yerg.  410 ;  Yocum 

must  make  demand  before  suing  on  v,  Barnes,  8  B.  Monroe  (Ky.),  496. 

tlie  bond.  Pierce  u.  Whiting,  63  Cal.  ^  Gardner  v.  Donnelly,  86  Cal.  367: 

538.  Abbott  v.  Wilson,  15  Colo.  512;  Low- 

1  Smith  r.  Fargo,  57  Cal.  157 ;  Shep-  enstein   v.   McCadden,  54  Ark.   13; 

pard  V.  Collins,  13  la.  570;  Purcell  Ward  v.  Whitney,  3  Sandford,  399; 

V.  Steele,  12  111.  93;  Curiae  v.  Pack-  Lightle  v.  Berning,  15  Nev.  389. 

ard,  29  Gal.  194.  &  Gilbert  v.   Anthony,  1  Yerg.  69; 

2Kohn  V.  Hinshaw,  17  Oreg.  308;  Wynne  v.  Governor,  id.  149;  Byers 

Hill's  Oreg.  Code,  i^  154.     Omission  v.  McClanahan,  6  Gill  &  J.  250 :  Per- 

of  the  jurat  has  been  held  not  be-  niinterr.  McDaniel,  1  Hill,  267;  Boyd 

yond  remedy  by  amendment.    Ryan  v.  Bo3'd,  2  N.  &  M.  125 ;  United  States 

r.  Goldfrank,  58  Tex,  356;  Hewes  v.  v.  Nelson,  2  Brock.  64;  Ayres  v.  Har- 

Cot)per,  115  Mass.  43.  ness,  1  Ham.  368;  McKee  v.  Hicks, 


516  defendant's  bonds.  [§§  751,  Y52. 

This  is  not  a  settled  rule  by  any  means.  The  authorit}^  or 
subsequent  ratification  ma}"  be  inferred  from  circumstances.^ 
An  attorne}^  for  attachment  defendants  filled  a  blank  in  a 
forthcomino;  bond  with  a  description  of  the  property  after 
they  had  signed.  The  bond  was  held  good  and  the  attorney 
recoo:nized  as  their  asent  to  fill  and  deliver  the  instrument.^ 

§  751.  This  bond  is  a  special  contract,  authorized  by  statute, 
which  the-sheriff  is  bound  to  accept  when  the  security  is  suffi- 
cient. The  consideration  of  the  contract  is  the  release  of  the 
attached  property;^  its  delivery  to  the  defendant  for  him  to 
hold  under  the  sheriff.  The  bond  should  be  for  both  plaintiffs 
when  there  are  two  attachments  of  the  property  bonded.* 

The  rule  that  "judicial  bonds  must  be  tested  by  the  law 
directing  them  to  be  taken;  that  which  is  superadded  must  be 
rejected  and  that  which  is  omitted  supplied,"  applies  to  bail 
and  release  bonds  that  have  been  acted  upon  and  release 
^Ifected.^ 

By  giv^ing  the  bond,  the  defendant  acknowledges  the  action 
but  not  that  the  writ  was  legally  issued.^  He  has  been  held  to 
have  waived  irregularities  by  bonding.'^  Where  a  third  per- 
son is  allowed  to  give  a  forthcoming  bond,  he  does  not  admit 
by  that  act  that  the  property  belongs  to  the  defendant,  as  the 
latter  does  when  bonding.^  If  claiming  and  bonding  for  him- 
self in  the  attachment  case,  he  should  appear  as  an  intervenor." 

§  752.  Plaintiff  the  real  oWu/ee. —  Though  the  bond  be  ex- 
ecuted nominally  to  the  sheriff  as  the  obligee,  the  attaching 

2  Dev.  379.    C'oni?-a,  Wiley  r.  Moor,  Emanuel  v.  Mann,  14  id.   53.     The 

17  S.  &  R.  488.  rule  has  been  applicable  to  injunc- 

1  White  V.  Duggan,  140  Mass.  18;  tion  bonds.     Breedlove  u.  Johnston, 

Smith  V.  Crocker,  5  id.  537;  City  of  2  Martin,  N.  S.  (La.)  517  ;  Eyssallenne 

Chicago  V.  Gage,  95  111.  593;  Bartlett  v.  Bank,  3  La.  Ann.  663;  Mason  v. 

V.  Board,  59  id.  364;  McCormick  v.  Fuller,  12  id.  68.    But  an  attachment 

Bay  City,  23  Mich.  457;  Bank  v.  Mc-  bond  is  not  wholly  governed  by  this 

Cliord,  4  Dana,  191 ;  Willis  r.  Rivers,  rule. 

80  Ga.  556.  ^  Avet  v.  Albo,  21  La.  Ann.  349. 

2Palacios  v.  Brasher,  18  Colo.  593.  ^xsew  Haven,  etc.  v.  Raymond,  76 

SLightle  V.  Beruing,  15  Nev,  389.  la.  225. 

*Elser    V.    Graber,    69    Tex.    225;  ^Petring  v.  Chrisler,   90  Mo.  649. 

Peters  v.  Schoelkopf,  71  id.  419.  Compare  Applewhite  v.  Mill  Co.,  49 

5Slocomb  V.   Robert,   16  La.   173;  Ark.  279. 

Welsh  V.  Barrow,  9  Rob.  (La.)  535;  nicElfatrick  zj.  Macauley,  15  Mo. 

Baker  v.  Morrison,  4  La.  Ann.  373;  App.  102. 


§3  753,  75 J:.]        THE  FORTHCOMING  BOND.  517 

creditor  is  the  real  party  interested;  and  the  obligation  is 
taken  with  the  implication  always  accompanying  such  and 
similar  undertakings,  that  it  cannot  be  enforced  against  the 
<lefendant  and  his  sureties  if  they  are  prevented  in  their  per- 
formance of  the  stipulations  by  the  laulc  of  the  plaintiff  him- 
self.^ In  case  the  defendant,  after  judgment  against  him, 
should  fail  to  return  the  attached  property  to  the  sheriff  after 
due  notice  (when  by  the  terms  notice  is  necessary),  the  plaint- 
iff may  sue  upon  the  bond  upon  its  being  transferred  to  him 
by  the  sheriff.     He  is  therefore  the  real  obligee. 

The  bond  may  be  given  to  two  or  more  plaintiffs,  and  made 
joint  and  several,  it  is  held.^  Where  the  bond  is  given  to 
plaintiffs,  a  third  person  cannot  sue  upon  it;*  if  given  by  a 
stranger  to  the  officer,  it  should  be  authorized  by  statute.*  A 
garnishment  bond  given  by  the  defendant  to  the  sheriff,  when, 
the  statute  requires  it  to  be  given  to  the  plaintiff,  is  good  as 
a  common-law  bond.* 

§  753.  Right  to  'bond. —  The  defendant  has  the  right  of  bond- 
ing the  attached  property' upon  offering  proper  security.  The 
sheriff  cannot  deny  him  this  right;  and  therefore,  if  the  bond 
is  good  when  taken,  the  sheriff  will  not  be  responsible  if  it 
should  afterwards  become  bad.  Even  if  the  bonded  prop- 
erty should  be  converted  by  the  defendant,  or  by  him  and 
his  surety,  and  thereafter  both  should  become  insolvent,  the 
sheriff  will  not  be  responsible.^ 

After  a  bond  has  been  received,  the  sheriff  may  still  retain 
the  attached  property  until  the  sureties  have  justified,  or  until 
the  plaintiff  has  had  an  opportunity  to  test  their  solvency  and 
sufficiency  where  that  is  a  right  of  the  plaintiff;  at  least  the 
property  may  be  retained  a  reasonable  time  for  this  purpose.'^ 

§  75^.  A  second  attacher  cannot  replevy.  The  sheriff"  would 
be  liable  for  delivery  to  him  so  that  the  property  should  not 
be  forthcoming  to  satisfy  the  lien  of  the  first  attacher,^     If  a 

1  Downman  v.  Chinn.  2  Wash.  189 ;  5  A^'new  r.  Leath,  63  Ala.  345. 

Jaeger  v.  Stelting,  30  Ind.  341.  6  Wheeler  v.  McDill,   51  Wis.  356. 

2Elser    V.    Graber,    69    Tex.    223;  ''In   New  York,  so  held   under  a 

Saddlery  Co.     v.   Schoelkopf   (Tex.  statute  provision.     Moses  v.  Water- 

App.),  21   S.   W.   386;  Bernheim  v.  bury  Button  Co.,  15  Abb.  (N.  Y.)  Pr. 

Shannon,  id.  (N.  S.)  205. 

3  White  r.  Hawkins,  16  La.  Ann.  ^  Cordaman  v.    Malone,    03    Ala. 

25;  Wright  v.  White,  14  id.  583.  556;  Scarborough  v.   Malone,  67  id. 

*  Morris  v.  Hall,  41  Ala.  510.  570. 


518  defendant's  bonds.  [§§  755-757. 

second  attacher  has  succeeded  in  bonding  the  property,  he 
ought  to  be  treated  as  a  stranger;  and  a  forthcoming  bond,  or 
replevy,  by  a  stranger,  is  considered  as  in  behalf  of  the  de- 
fendant in  Alabama.' 

§  755.  The  term  "  part-owner,"  is  not  ordinarily  employed 
as  synonymous  with  "  partner."  Where  the  former  is  en- 
titled to  have  attached  property  appraised,  and  delivered  to 
him  on  bond,  after  it  has  been  levied  upon  in  a  suit  against 
another  part-owner,  it  does  not  follow  that  a  partner  has  this 
privilege.- 

§  756.  The  obligation. —  Should  the  defendant  bond  a  part 
of  his  attached  property,  obligating  himself,  wnth  his  surety, 
to  return  it  in  case  of  judgment  against  him,  the  obligation 
would  be  satisfied  upon  his  payment  for  what  he  receives.* 

The  obligation  is  to  produce  the  property  or  pay  the  sura 
stated  therein  to  the  amount  of  the  judgment;  not  to  pay  the 
amount  of  the  bond  when  it  exceeds  the  judgment,  nor  the 
value  of  the  property.*  Where  the  obligors  are  liable  for  the 
value  of  the  property  (as  they  must  be  when  the' judgment 
equals  or  exceeds  it),  the  amount  is  ascertained  by  the  court 
and  jury,  and  is  not  necessarily  what  was  fixed  by  the  ap- 
praisers when  the  bond  was  given,^  But  it  must  be  what  the 
property  was  then  worth.® 

§  757.  If  the  obligation  is  for  the  purpose  of  obtaining  act- 
ual charge  of  all  the  property  that  has  been  attached,  they  can- 
not return  a  part  and  pay  a  part.  It  is  no  compliance  with 
the  terras  of  such  bond  to  tender  the  return  of  a  part  of  the 
property  that  had  been  released  under  it.''    There  raust  be  a 

1  Ehodes    v.   Smith,    66  Ala.  174;  without   the   plantation.      Lallande 

Ala.  Code,  §  3289.  v.  Crandall,  38  La.  Ann.  193. 

2Breck  v.  Blair,  129  Mass.  127,  in  <  Schmidt  v.  Brown,  33  La.  Ann. 

which  it  is  said:  "  If  we  assume,  as  416;  Lemle  v.  Routon,  id.  1005. 

is  stated   in    Pierce    v.    Jackson,    6  ^  Fletcher  v.  Menken,  37  Ark.  206, 

Mas?.  242,  that  a  creditor  of  one  part-  in  exposition  of  Gantt's  Ark.  Dig., 

ner  has  the  right  to  attach  the  part-  §  406.     See  Allerton  v.  Eldridge,  56 

nership  effects,  yet  we  are  of  opinion  Iowa,  709,    in    exposition    of   Iowa 

that  the  statute  was  not  intended  to  Code,  §  2994. 

apply  to  such  an  attachment."  ^  Perry  i\  Post,  45  Ct.  354 ;  Ham- 

3  Ellsworth  V.  Scott,  3  Abb.  (N.  Y.)  mond  v.  Starr,  79  Cal.  556. 

N.  Cas.  9,  in  exposition  of  Code  Civ,  ''Metrovitch  v.  Jovovich,  58    Cal. 

Pro. ;    Brumby  v.  Bernard,   60  Ga.  341,   in  exposition  of  Cal.   Code  of 

292.     A  plantation   and  crop  being  Civil  Proc,  4$  565. 
attached,  the  crop  may  be  bonded 


§  758.]  THE  Fora'iicoMiNG  bond.  519 

tender  or  delivery  of  the  whole;  and  the  return  of  it  must  be 
promptly  made,  upon  demand,^  or  the  defendant  will  lose  his 
right  of  election.-  However,  if  on\y  a  part  has  been  bonded, 
the  return  of  that  portion  would  satisfy  the  obligation.' 

Bonded  property  must  be  forthcoming  when  and  as  the  bond 
recites.*  The  obligors  cannot  refuse  to  deliver  it  to  the  sher- 
iff for  sale  when  the  judgment  fails  to  order  the  sale  of  that 
]iarticular  property.^  The  sureties  are  not  liable  on  a  forth- 
coming bond  which  the  sheriff  has  rejected.^ 

§  758.  Surety. —  The  main  object  of  the  bond  is  to  hold  the 
surety.  The  defendant  is  no  more  bound,  after  signing,  than 
before.  The  surety's  obligation  binds  him  to  pay  the  sum 
nominated  in  the  bond  to  the  amount  of  whatever  judgment 
may  be  rendered  against  his  principal,  in  case  the  property 
should  not  be  returned  as  stipulated.^  When,  in  the  instru- 
ment, time  and  place  of  return  are  stipulated,  notice  to  the 
surety  is  unnecessar^^^  Unless  the  terms  of  the  bond,  or  of 
the  statute,  warrant  judgment  upon  mere  motion,  it  cannot 
be  allowed  in  practice.*'  The  surety  can  set  up  no  defense  to 
the  judgment  rendered  against  his  principal  which  the  prin- 
cipal could  not  set  up."'  He  cannot  deny  that  the  bonded 
money  or  property  belonged  to  his  principal  when  the  bond 
recites  that  fact,^^  unless  the  statute  authorizes  such  defense.'- 

iWrightv.  Manns,  llllnd.422.  »  Clary  v.  Haines,  61   Ga.  520,  in 

2  Goebel  v.  Stevenson,  35  Mich,  exposition  of  Ga.  Code,  §§  3319, 
172.  4083. 

3  Brumby  v.  Barnard,  GO  Ga.  292.       lo  McCIosky   v.    Wingfield,  32   La. 
<  Mitchell  V.  Merrill,  2  Blackf.  87 ;    Ann.  38.     He  may  save  himself  by 

Driggs    V.    Harrison,    2    Mont.    30 ;  delivering  when  the  principal  does 

Brotherton  v.  Thompson,  11  Mo.  94.  not.     Hansford  v.  Perrin,  6  B.  Mon. 

5  Guay  u.  Andrews,  8  La.  Ann.  141.  595;  Reagan   v.   Kitchen,  3  Martin 

6  Cortelyou   v.    Maben  (Neb.),    59  (La.),  418. 

N.  W.  94.  11  Johnston  r.  Oliver  (Ohio),  36  N.  E. 

^  Stuart  r.  Lacoume,  30  La.  Ann.,  458;    Birdsall    v.    Wheeler,    58    Ct. 

Parti,  157;  Higdon  v.  Vaughan,  58  429;  Easton  v.   Goodwin,  22  Minn. 

Miss.  572;  Gardner  v.   Donnelly,  86  426;  Miller  v,  Desha,   3  Bush,  212; 

Cal.  367;  Green  v.  Robertson,  64  id.  Gray  r.  M'Lean,  17  111.  404;  Hoshaw 

75;  Stevenson  r.  Palmer,  14  Colo.  565.  v.    Gullett,    53  Mo.   208;    Sartin    v. 

8  Hunter  v.   Brown,   68    Ind.   225.  Wier,  3  Stew.  &  Porter,  421. 

Held  unnecessary  in  a  suit  on  an  in-  l-Blatchley   v.    Adair,    5    la.    545. 

demnity   bond.     Park  v.  Mighell,  3  See  Schwein  v.   Sims,  2  Met.  (K}\) 

Wash.  St.  737;  Hill's  Code,  g  317.  209;  Halbut  v.  McCulloch,  3  id.  456. 


520  defendant's  bonds.  [§§  759,  760. 

He  cannot  object  to  mere  mistakes  (not  affecting  jurisdiction) 
in  a  suit  against  his  principal.^  He  cannot  complain  of  the 
release  of  his  co-obligee  when  it  does  not  affect  himself.^  He 
cannot  claim  release  because  the  bond  states  the  debt  as  less 
than  the  petition  states  it.^  But  he  may  buy  the  attached 
property  at  a  foreclosure  sale  under  a  mortgage  prior  to  the 
attachment,  and  may  then  replevy  it  from  the  sheriff,  not- 
withstanding his  suretyship.*  His  liability  is  from  the  mo- 
ment of  failure  to  return  on  demand  under  fi.fa^  But  he  is 
liable  only  for  what  was  realized  by  the  sale  of  the  property 
by  the  defendant  on  account  of  its  perishabilit^^^ 

§  759.  St}2)ulation  to  return  or  paij  value. —  When  the  bond 
is  given  to  the  plaintiff,  and  conditioned  that  the  property 
siiall  be  returned  or  its  value  i^aid  to  him,  it  is  not  a  mere 
,  forthcoming  bond;  and  it  has  been  held  to  be  a  substitute  for 
the  attachment,  operating  the  loss  of  the  lien.  Property  thus 
released  may  be  sold  by  the  defendant,  subjected  to  a  new- 
attachment  in  his  hands  by  another  creditor,  levied  upon 
in  execution,  etc.,  just  as  though  released  under  the  usual  form 
of  a  bond  to  dissolve.'^  And  sureties  are  held  bound  for  the 
debt  and  costs  upon  judgment.^  It  has  been  held  in  Colorado, 
with  much  force  of  argument,  that  such  bond  does  not  destroy 
the  lien,  and  that  other  attachers  cannot  seize  the  bonded 
j)roperty  in  the  defendant's  hands.*^  There  can  be  no  release 
on  a  forthcoming  bond  after  final  judgment  rendered.''' 

§  760.  In  Georgia,  a  replevy  bond  is  not  a  forthcoming  boml. 
As  prescribed  l^y  statute,  it  is  for  the  payment  of  money  and 
not  the  restitution  of  the  attached  property .''    Much  confusion 

1  Atkinson  v.  Fox  worth,  53  Miss.  Woodward  v.  Adams,  9  id.  474. 
;:]3.  See  Edwards  v.   Pomeroy,    8  Colo. 

2  Andre  v.  Fitzhugh,  18  Mich.  93.     254. 

sfeverettv.  Westmoreland    (Ga.),  *  Barry  v.  Frayser,  lOHeisk.  206; 

19  S.  E.  37.  Bond  v.  Greenwold,  4  id.  453. 

*  Kelley  v.  Sitlington,  54  Mo.  App.  »  Schneider  v.  Wallingford  (Colo. 

168.  App.),  34  P.  1109;  Stevenson  v.  Pal- 

5  Stuart  V.  Lacoume,  30  La.  Ann.,  mer,  14  Colo.  565 ;  Joslin  v.  Spangler. 
Part  I,  157.  18  id.  491;  Speelman  v.  Chaffee,  5 

6  Richards  v.  Craig,  8  Bax.  457.  id.  247. 

"Jones  V.    Peasley,    3  G.    Greene  lO Woodward    v.    Witascheck,    38 

(la.),  53,  in  exposition  of  statute  au-  Kan.  760. 

ihorizing  such  a  bond.     To  the  same  "  Clary  v.  Haines,  61  Ga.  520.     SiC 

effect,  Austin  v.  Burgett,  10  la.  303 ;  Roiuvald  v.  Hobbie,  85  Ala.  73. 


§§  7G1,  762.]  THE    DISSOLUTION    BOND.  521 

Avould  be  avoided  if  law3'ers  and  judges  would  always  distin- 
guish between  forthcoming  and  dissolution  bonds,  and  never 
employ  the  term  "replevy  bond"  without  such  qualification 
of  that  more  general  designation  as  would  show  whether  the 
obligation  is  for  the  return  of  the  propert}'  or  for  the  pay- 
ment of  money,  either  as  the  value  of  the  bonded  property  or 
as  satisfaction  of  such  judgment  as  may  be  recovered.  Wiien, 
however,  the  defendant,  under  a  forthcoming  bond,  receives 
funds  deposited  in  court  by  a  garnishee,  the  effect  is  about 
the  same  as  their  receipt  under  a  dissolution  bond.^ 

§  T61.  The  act  of  giving  a  forthcoming  bond  does  not  pre- 
clude the  defendant  from  moving  to  quash  the  attachment.^ 
The  bond  loses  its  hold  when  the  attachment  is  vacated. 
Though  the  plaintiff  obtains  personal  judgment,  he  cannot 
sue  upon  the  bond.^ 

II.  The  Dissolution  Bond. 

§  762.  As  to  the  lien. —  When  the  attachment  is  dissolved 
by  the  giving  of  a  bond  conditioned  upon  the  payment  of 
whatever  judgment  may  be  rendered  against  the  defendant, 
the  lien  upon  the  propert}'  thus  released  is  removed.  Tlie 
suit  continues  then  as  a  personal  action  onl}'-.  The  attach- 
ment proceeding  is  at  an  end."*     The  bond  is  given  to  the 

1  Henry  v.  Gold  Park  Mining  Co.,     Allen,  82  N.  Y.  114;  Buckingham  r. 

3  McCrary,  390,  in  exposition  of  Svvezy,  61  How.  Pr.  266;  Baxley  r. 
Colorado  Code.  See  Woodward  v.  Linab,  4  Harr.  241";  Kling  r.  Child?, 
Adams,  9  la.  474.  30   Minn.   366;  Ruchelman  r.   Skin- 

2  Love  V.  Voorhies,    13   La.    Ann.  ner,  46  id.  196;  Scanlon  v.   O'Brien, 
5o0.  21  Minn.  434 ;  Dierolf  v.  Winterfield, 

3Fernau  v.    Butcher,  113  Pa.   St.  24  Wis.    143;  Monroe   v.   Cutter,   9 

293.  Dana,  93;  Hazelrigg   v.   Donaldson, 

*  Epstein  v.  Salorgue,  6  Mo.  App.  2  Met.   (Ky.)  445;  Harper  v.    Bell, 

352;  Hills   v.    Moore,   40  Mich.  210;  2   Bibb,    221;    Inman    r.    Stratton, 

Wolf  V.   Stix,  99  U.    S.  1;  Barry  u.  4  Bush,    445;    Myers   v.    Smith,    29 

Foyles.  1  Pet.  311;  Albany  City  Ins.  Ohio  St.    ]20;    Eddy   v.    Morse,    23 

Co.  V.  Whitney,  70  Pa.  248 ;  Marsh  r.  Kan.    113;    Endress  v.   Ent,    18  id. 

Pier,  4  Rawle,  289;  Duffy  &Mehaffy  236;    People    v.     Cameron,     7    111. 

r.  Lltle,  5  Watts,  132;  Fitch  u  Ross,  468:    Hill  v.    Harding,    93    id.    77; 

4  Serg.  &  R.  557 ;  Wilson  v.  Wilson's  Fife  v.  Clarke,  3  McCord  (S.  C),  347 ; 
Adni'r,  9  id.  429 ;  Brenner,  Trucks  &  Erwin  v.  Heath,  50  Miss.  795 ;  Philips 
Co.  r.  Moyer,  98  Pa.  St.  274 ;  Parker  r.  Hincs,  33  id.  163;  Wharton  v. 
V.  Farr,  2  Browne,  331 ;  IMcCombs  v.  Conger,  9  Sm.  &  M.  510;  Ferguson  v. 


622  dep^endant's  bonds.  [§§  763,  764. 

plaintiff,  and  it  holds  good  to  his  assignee,^  and  binds  the 
sureties.-  And  it  has  been  held  that  such  a  bond  obliges  the 
defendant  to  ''perform  the  judgment  of  the  court"  though 
the  attachment  was  wrongly  issued,^  He  cannot  defend  a 
suit  on  the  bond  by  pleading  that  there  was  judgment  of  non- 
suit, if  there  was  afterwards  a  final  judgment  against  him.* 
And  it  has  been  held  that  the  obligors  cannot  defend  on  the 
ground  that  the  complaint  was  insufficient.^ 

§  763.  It  is  the  defendant's  right  to  give  such  bond  with 
sufficient  security  and  thus  dissolve  the  attachment  at  any 
stage  of  the  cause.  If  the  dissolution  of  an  attachment  is  the 
object  of  the  bond,  it  is  necessar}^  that  there  should  have  boen 
some  property  attached,  since  otherwise  the  bond  would  be 
voidable.  It  is  true  that  without  any  attachment  the  debtor 
might  voluntarily  execute  a  bond  with  security,  obligating 
himself  to  the  plaintiff  to  pay  whatever  judgment  might  be 
rendered  (as,  indeed,  such  an  instrument  might  be  executed  in 
any  personal  action);  but  the  defendant  Avould  not  be  bound 
further  than  he  was  before  the  execution  of  such  a  written 
obligation,  and  the  instrument  would  not  be  a  dissolution 
bond.  It  might  hold  good,  however,  against  both  the  princi- 
pal and  surety  as  a  common-law  bond. 

§  764.  Common-lmv  hond. —  A  bond  to  pay  any  final  judg- 
ment and  also  to  return  the  goods  if  the  attachment  should 
be  sustained  w^is  held  to  be  not  a  statutory  but  a  common- 
Vance,  3  Lea,  90;  Gillispie  v.  Clark,  v.  Burgett,  10  la.  302;  Ferguson  v. 
1  Tenn.  2;  Payneu  Snell,  3Mo.  409;  Glidewell,  48  Ark.  195;  Fox  v. 
Morrison  v.  Alphic,  23  Ark.  136;  Mackenzie,  1  N.  D.  298.  Compare 
Childress  v.  Fowler,  9  id.  159;  Rey-  Glidden  v.  Whittier,  46  Fed.  437. 
nolds  t?r  Jordan,  19  Ga.  436;  Irvin  V.  i  Slosson  v.  Ferguson,  31  Minn. 
Howard,  37  id.  18:  Shirley  U.Byrnes,  448;  Minn.  Gen.  Stat.  1878,  ch.  66, 
34  Tex.  625;  Kennedy  v.  Morrison,  31     §  157. 

id.  207;  Dorr  v.  Kershaw,  18  La.  57;  2Sharpe  v.  Morgan  (111.  App.),  33 
Beal  V.  Alexander,  1  Rob.  (La.)  277;  N.  E.  22;  Pierce  v.  Whiting,  63  Cal. 
Benton  v.  Roberts,  2  La.  Ann.  243;    538. 

McRae  v.  Austin,  9  id.  360 ;  Love  v.  3  Ferguson  v.  Glidewell,  48  Ark. 
Voorhies,  13  id.  549;  Kendall  v.  195  (§  337,  Mansfield's  Dig.).  S'ee  the 
Brown,  7  id.  668 ;  Rathbone  v.  Ship  able  dissenting  opinion  of  Chief  Jus- 
London,  6  id.  439;  Wyman  ?'.  Hal-    tice  Cockrill. 

lack  (S.  D.),  57  N.  W.  197;  McLaugh-        <  Moore  v.  Mott  (Cal.),  34  P.  343. 
lin  V.   Wheeler,  1   S.    D.  497 ;  N.  D.        5  McCutcheon  v.   Weston,  65  Cal. 
Comp.   Laws,  g§  5009,  5010;  Austin    37. 


§  TC5.]  THE    DISSOLUTION    BOND.  523 

law  bond.  The  effect  was  to  dissolve  the  attachment,  so  that 
the  liability  of  the  obligors  did  not  depend  upon  the  attach- 
ment. They  were  therefore  not  released  by  an  assignment 
by  the  debtor  for  the  benefit  of  his  creditors.  And  the  plaint- 
iff's recourse  on  the  bond  was  not  lost  by  his  accepting  a 
dividend  from  the  assignee.'  The  court  said  in  the  case  cited  : 
"Either  one  of  these  conditions  would  of  course  have  been 
sufficient;"  and  concluded  that  as  the  obligors  had  given 
both  a  bail  bond  and  a  delivery  or  forthcoming  bond,  "these 
conditions  should  be  construed  as  in  the  alternative."  Condi- 
tions are  to  be  construed  favorably  to  obligors.^  But  as  the 
bond  in  question  did  not  conform  to  the  conditions  either  of 
a  bail  or  a  delivery  bond,  it  was  treated  as  a  common-lav/ 
bond  and  held  good  as  such,  since  it  violated  no  statute  and 
had  lawful  consideration.^ 

§  765.  Lien  destroyed. —  Attaching  when  the  debtor  is  sum- 
moned or  voluntarily  appears  has  no  further  effect  than  to 
enable  the  plaintiff  to  get  a  privilege  judicially  recognized 
upon  the  thing  attached,  retroactive  to  the  time  of  seizure,  so 
as  to  enable  him  to  make  his  money  on  his  personal  judgment. 
If  the  effect  of  the  dissolution  by  bonding  is  to  destroy  the 
hypothetical  lien  created  by  attaching  and  replace  it  with 
security  for  the  debt  recoverable  in  case  of  judgment,  the  suit 
becomes  wholly  personal  by  reason  of  the  dissolution,  and  is 
like  an  ordinary  action  to  recover  debt  of  a  principal  and  his 
surety.  When  the  attachment  is  sued  out  in  an  action  sep- 
arate from  the  main  suit  which  it  is  meant  to  aid,  and  is  dis- 
solved by  bonding,  the  defendant  may  afterwards  plead  in 
bar  that  judgment  has  been  rendered  in  the  principal  case.* 
There  would  be  two  actions  between  the  same  parties  on  the 
same  cause  of  action,  and  therefore  the  disposition  of  one  is 

^Easton  v.   Ormsby  (R.  I.),  27  A.  as  to  the  natui-e  of  the  common-law 

216.  bond,  Wright  r.  Keyes,  103  Pa.  St. 

^Pearcer.  Maguire,  17  R.  I.  61.  567;    AVhitset   v.    Womack,   8   Ala. 

''Easton  v.   Ormsby,  siipra;  Cen-  466;  Jacobs  v.   Dougherty,  78  Tex. 

tial  Mills  V.  Ste%vart,  133  Mass.  461;  682;  Colorado  Bank  v.  Lester,  73  id. 

Smith  V.  Fargo,  57  Cal.  157;  Palmer  542;    Johnson    v,     Weatherwax,    9 

V.  Vance,  13  id.  553;  Bunneman  v.  Kan.  75;  Cook  v.  Boyd,  16  B,  Mon. 

Wagner,  16  Oreg.  433.     In  addition  556:  Morse  v.  Hodsden,  5  Mass.  314. 

to  the  above  cases  cited  bj-  the  court  ■*  Brenner,  Trucks  &  Co.  v.  Moyer, 

in  the  first  one,  see  to  the  same  effect  98  Pa.  St.  274. 


524:  defendant's  bonds.  [§  7Q6. 

the  disposition  of  botb.^  "While  the  attachment  suit  remains 
intact  there  is  no  inconsistency.  One  who  has  sued  in  as- 
sumpsit may  bring  an  attachment  suit  on  the  same  cause  of 
action,  because  the  latter  is  to  create  a  lien  to  aid  the  former, 
and  there  is  no  inconsistency.^ 

The  personal  suit  may  be  against  a  firm,  and  an  ancillary 
one  against  a  partner;  and  the  latter,  by  which  a  lien  is  ac- 
quired (against  that  member's  interest,  if  the  attached  prop- 
erty belongs  to  the  firm),  ought  not  to  be  dismissed  on  the 
ground  that  no  lien  has  been  acquired  against  the  property 
of  the  partnership.^ 

§  766.  Several  defendants,  each  claiming  separate  property 
attached  by  the  plaintiff  in  one  suit,  may  be  allowed  to  file 
separate  bonds,  each  obliging  himself  for  his  rightful  propor- 
tion of  the  plaintiff's  demand  as  ascertained  by  the  court.* 

When  the  defendant  has  had  his  attached  property  restored 
to  him,  upon  his  giving  bond  with  security  to  satisfy  what- 
ever judgment  the  plaintiff  may  recover  against  him,  there  is 
no  longer  any  attachment  lien  resting  on  the  property  thus 
released.'^  If  the  court  on  the  trial  of  an  attachment  suit, 
after  a  release  upon  a  forthcoming  bond,  renders  a  personal 
judgment  against  the  defendant  without  recognizing  and  de- 
creeing expressly  or  impliedly  that  he  shall  have  a  privilege 

1  Wilson  V.  Wilson's  Adm'r,  9  S,  &  in  construction  of  a  statute  in  which 

R.  429;  Marsh  v.  Pier,  4  Rawle,  289;  it  is  provided  that,  after  attachment 

Duffy  &  MehalT^  v.  L>tle,  5  Watts,  has  been  set  aside  upon  bond,  "the 

132;  Baxley  v.  Linah,  4  Harr.  241.  fiause  shall  proceed  as  if  the  defend- 

^Svvartz    v.    Lawrence,    12  Phila.  ant  had  been  reasonably  served  with 

181 ;  Roberts  v.  Dunn,  71  111.  46.  a  writ  of  summons  "  (Rev.  Stat.  1874. 

3  Buckingham  v.  Swezy,  61  How.  ch.  11,  §  14),  yet  the  court's  reasons 

(N.    y.)   Pr.    266.      See,   as    to    suit  seem  to  be  of  general  application, 

against  joint  defendants,  with  serv-  It  is  said :  "  the  character  of  the  suit 

ice    on    one    only,    and.  judgment  as  a  proceeding  iu  rnn  was  thereby 

against   him   only, —  effect    if  bond  [by   bonding]    completely  changed, 

given    to    dissolve     attachment    in  The  suit  thereupon  became  a  pro- 

which  but  one.  defendant  is  named,  ceeding  in  personam  as  completely  as 

Central   Mills    Co.   v.   Stewart,    133  if  it  had  been  originally  commenced 

Mass.  461.  by  an  ordinary  summons,  and  no  at- 

*  Hughes  r.  Tennison,  3  Tenn.  Ch.  tachment  had  even  been  sued  out; 

C41.      Contra,    Magee   v.    Callan,    4  and  the  qualified  lien  which  appel- 

Cr.  C.  C.  251.  lees   [attaching  creditors]   acquired 

5  Hill    V.     Harding,     93    111.     77.  by  the  levy  of  the  attachment  was 

Though  this  was  substantially  said  forever  gone." 


§§  TtiT,   TCS.]  THE    DISSOLUTION   BOND.  525 

on  the  property  attached,  it  has  been  held  to  be  virtually  a 
release  of  the  property,  and  a  dismissal  of  the  attachment* 
(though  in  some  states  such  recognition  of  lien  and  privilege 
is  understood);  but,  if  there  has  been  a  dissolution  bond  ex- 
ecuted, the  judgment  must  necessarily  be  without  recogni- 
tion of  lien  and  privilege  and  without  reference  to  attached 
property.^ 

§  707.  The  res  diseippears. —  The  res  of  the  ancillary  action 
disappears  by  the  bonding,  so  that  no  intervenor  could  there- 
after appear  in  the  case  to  claim  it.^  AVhether  he  has  iijus 
in  re  or  Sijus  ad  rem,  he  can  secure  his  right  only  by  follow- 
ing the  res  itself.  If  the  bond  is  a  substitute  for  the  res  so  far 
as  the  plaintiff  is  concerned,  it  is  not  so  with  respect  to  a 
third  party  claiming. 

This  subject  may  be  elucidated  by  reference  to  libel  suits 
for  the  enforcement  of  liens  upon  property,  in  which  the  res 
itself  is  impleaded  and  in  which  there  is  no  personal  defend- 
ant: such  as  a  libel  against  a  ship  to  enforce  the  pre-existing 
lien  evidenced  by  a  bottomry  bond.  Any  person  maj'  appear, 
make  stipulation,  file  a  claim  for  the  ship,  and  apply  to  bond 
her.  If  the  court  grant  the  application,  the  bond  becomes  the 
Substituted  ^rs  against  which  the  suit  is  further  prosecuted ; 
and  this  is  true  in  all  cases  in  rem  quoad  omnes,  irrespective 
of  persons.^ 

§768.  The  claimant  is  always  an  actor  —  not  the  subject 
of  the  action;  he  is  rather  a  plaintiff  than  a  defendant,  in  ac- 
tions in  rem  of  the  character  mentioned.  The  action  cannot 
therefore  become  a  personal  one  by  the  substitution  of  one7'es 
for  another. 

In  attachment  suits,  on  the  contrary,  there  is  always  a  per- 
son named  as  well  as  a  thing  attached ;  and  therefore,  when  the 
thing  has  been  given  up  by  the  court  because  of  the  securit}'^ 
given  by  the  personal  defendant  that  he  will  respond  to  the 

1  Wasson  v.  Cone,  86  111.  46 ;  Lowry  shaw,  18  La.  57 ;  Mayberry  v.  Stea- 
V.  McGee,  75  Ind.  508.  gall,  51  Tex.  351. 

2  Love  V.  Voorliies,  13  La.  Ann.  •*  Houseman  r.  Cargo  of  the 
549.  Schooner  North  Carolina,  15  Pet.  40; 

3  Gibson  v.  AVilson,  5  Ark.  42'3;  The  Virgin,  8  id.  538;  United  States 
McRae  v.  Austin,  9  La.  Ann.  360;  v.  Ames,  99  U.  S.  35;  Tiie  C.  F.  Ack- 
Monroe  v.  Cutter,  9  Dana,  93;  Taylor  ennan,  14  Blatchf.  300;  The  Blanche 
V.  Taylor,  3  Bush,  118;  Dorr  v.  Ker-  Pa-e,  10  id.  L 


526  defendant's  bonds.  [§§  769,  770. 

judo-ment,  it  becomes  more  simple  and  satisfactory  to  say  that 
the  suit  goes  on  to  the  end  as  one  in  jyersonam^  than  to  say 
that  there  is  3'et  a  res  in  the  substitute  given.  This  should 
outweigh  argument  drawn  from  the  analogy  suggested  by  the 
practice  in  proceedings  of  the  character  above  considered. 

§769.  Effect  on  garnishment. —  The  garnishee,  though  he 
has  answered  that'  he  owes  the  defendant  or  holds  his  prop- 
erty, should  be  discharged  if  the  defendant  appears  and  enters 
into  bond,  with  security,  conditioned  that  he  will  satisfy  what- 
ever judgment  maj^  be  rendered  against  him  in  the  suit. 
There  v^ould  be  no  motive  for  the  giving  of  such  bond,  unless 
the  defendant  thus  becomes  entitled  to  the  dissolution  of  the 
attachment,  the  restitution  of  his  seized  property'  and  the  re- 
lease of  his  own  debtors  from  the  effect  of  garnishment.  The 
attaching  creditor,  being  perfectl}''  secured  by  the  bond  (the 
worth  of  which  he  has  had  opportunity  to  test),  has  no  cause 
to  complain  of  the  results  above  mentioned.  The  bond,  or 
undertaking,  is  to  him  a  substitute  for  all  of  defendant's  prop- 
erty or  credits  attached. 

A  garnishee,  after  the  bonding,  ought  to  be  discharged  be- 
fore answering;  but,  whatever  his  answer,  he  should  be  dis- 
charged so  soon  as  a  motion  is  made  therefor  on  suggestion  of 
the  bonding  as  the  ground  of  the  motion.^ 

III.  Bond  Sureties. 

§  770,  The  oWigation. —  The  surety  contracts  with  reference 
to  the  state  of  things  existing  or  represented  to  him.  He  is 
not  obligated  by  signing  a  bond  when  the  proper  parties  have 
misrepresented  it  to  him  — when  the  obligee  has  misled  him; 
and  when  those  who  were  to  be  his  co-obligors  have  failed  to 
sign,  thus  rendering  his  undertaking  more  onerous  than  that 
which  he  had  agreed  to  assume.^ 

It  is  a  voluntary  act  on  the  part  of  the  defendant  and  his 
surety  when  they  execute  a  bond  or  undertaking  to  pay  what- 
ever judgment  ma}''  be  rendered  against  the  defendant.     Be- 

1  Myers  r.  Smith,  29  Ohio  St.  120 ;  390;    Col.    Code,    §§    111,    112.     -See 

Lecesne  v.  Cottin,   10  Martin  (La.),  Cunningham   v.    Hogan,    136   Mass. 

174.    The  defendant  may  have  funds  407. 

paid  into  court  by  a  garnishee  re-  2  Sqq  Crawford  v.  Foster,  6  Ga.  202 ; 
leased  by  bonding.  Henry  v.  Gold  Bean  v.  Parker,  17  Mass.  591 ;  Clem- 
Park  Mining  Co.,  3  McCrary  C.  C.  ents  v.  Cassily,  4  La.  Ann.  380. 


§  771.]  BOND    SURETIES.  527 

cause  of  the  voUmtarv  character  of  the  act,  and  of  its  oblicra- 
tions  arising  from  the  contract  thus  entered  into  between  the 
defendant  and  his  surety  on  the  one  part,  and  the  attaching 
creditor  on  the  other,  the  obligors  would  not  be  relieved  by 
every  circumstance  subsequently  occurring  which  might  have 
rendered  the  attachment  itself  nugator3\^ 

§  771.  Bankruptcy  as  to  surety. —  By  the  provisions  of  the 
national  bankrupt  act,  attachments  sued  out  within  four 
raontbs  prior  to  the  tiling  of  a  petition  in  bankruptcj^  were 
dissolved  by  the  surrender  ;2  but  if  dissolution  had  taken  place 
previousl}'^  by  bonding,  the  bankruptcy  proceeding  did  not  re- 
lieve the  surety  on  the  bond.  From  the  time  of  the  bonding, 
the  attachment  lien  was  at  an  end,  so  that  the  assignee  in 
bankruptcy  came  in  charge  of  the  property  freed  from  lien  by 
the  defendant's  act  and  not  by  the  provision  of  the  bankrupt 
law.* 

Though  the  surety's  obligation  is  contingent,  and  subordinate 
to  that  of  his  principal ;  and  though  he  is  bound  to  pay  onl}^ 
in  case  the  plaintiff  recover  judgment  and  the  defendant  fail 
to  satisfy  it,  so  that  he  does  not,  by  signing  the  bond,  become 
immediately  and  separatel}'^  liable,*  yet  his  obligation  is  to  pay 
the  debt  when  adjudged,  if  his  principal  should  not  do  so  and 
cannot  be  made  to  do  so.  Hence,  in  case  of  the  bankruptcy  of 
the  latter  after  the  ancillary  proceeding  has  been  ended  by  the 
bond  dissolving  it  (and  after  the  suit  has  become  altogether  a 
personal  one),  the  surety  is  in  no  better  position  than  he  would 
be  if  bound  by  an  appeal  bond  to  pay  such  judgment  as  might 
be  rendered  in  an  appellate  court ;^  no  better  than  if  he  were 
surety  on  a  promissory  note  and  his  principal  should  go  into 

1  Preston  r.  Hood,  64  Cal.  405,  See  13  Abb.  Pr.  (N.  S.)  324;  Cornell  v. 
Coleman  v.  Bean,  33  How.  Pr.  370;  Dakin,  38  N.  Y.  253;  Braley  v. 
Gale  u.  Siefert,  39  Minn.  171 ;  Rowley  Boomer,  116  Mass.  527;  Cutler  v. 
V.  Jewett,  56  la.  492;  Poteet  v.  Bond,  Evans,  115  id.  27;  Hamilton  v.  Bry- 
10  Mo.  160;  Murray  v.  Shearer,  7  ant,  114  id.  543;  Carpenter  r.  Turrell, 
Cush.  333;  Hill  v.  Merle,  10  La.  108.  100  id.  450;  Bates  v.  Tappan,  99  id. 

2  West  Phila.  Bank  v.  Dickson,  95  37G;  Zollar  v.  Janvrin,  49  N.  H.  114; 
U.  S.  180;  Morgan  v.  Campbell,  22  .  Colman  r.  Bean,  3  Keyes,  94;  Parks 
Wall.  381 ;  Miller  v.  Bowles,  58  N.  Y.  v.  Sheldon,  36  Ct.  460. 

253;  Risley  v.  Brown,  67  N.  Y.   160;  •«  Wehle  v.  Spellmau,  75  N.  Y.  585. 

Goodhue  r.  King,  55  Cal.. 377.  5  State  v.  McGlothlin,  61  la.  312; 

3  Wolf  V.  Stix.  99  U.  S.  1 ;  McCombs  Hill  v.  Harding,  130  U.  S.  703.     See 
v.  Allen,  82  N.  Y.  114;  Holyoke  v.  Collins  ^j.  Burns,  16  Colo.  7. 
Adams,  59  id.  233 ;  Bildersee  v.  Aden, 


528  defendant's  bonds.  [§§  772,  773. 

bankruptc}^  The  discharge  of  the  principal  would  not  dis- 
charge the  surety.^  The  case  is  altogether  different  fi'ora  that 
of  the  dissolution  of  an  attachment  for  illegality  in  its  issue, 
its  levy,  its  return,  etc.,  or  anything  rendering  the  proceeding 
void  and  the  bond  inoperative  against  the  principal  and  there- 
fore not  binding  upon  the  surety  from  the  beginning. 

§  772.  Surety's  failnre. —  When  the  incipient  lien  is  nipped 
in  the  bud  by  the  dissolution  bond,  so  that  it  can  never  there- 
after come  to  maturitv,  it  cannot  be  resuscitated  by  the  court 
upon  the  bond  becoming  bad  thereafter  by  reason  of  the 
Surety's  failure  or  any  other  cause.  A  new  attachment  in 
such  case  might  be  issued  for  the  purpose  of  creating  a  new 
lien  where  there  is  statutory  authority  therefor;  and,  without 
a  new  attachment,  the  court,  upon  a  rule  by  the  plaintiff 
upon  the  defendant  to  show  cause  why  other  security  should 
not  be  given,  may  (upon  statute  authority)  make  such  rule 
absolute.  But  the  court  cannot  undo  what  has  been  done  by 
a  previously  valid  bond;  cannot  neutralize  the  effect  of  the 
dissolution  in  restoring  the  attached  property  to  the  defend- 
ant free  from  lien.^ 

When  the  worthlessness  of  the  bond,  by  reason  of  the  surety 
becoming  bankrupt  after  its  execution,  has  been  judicially 
ascertained,  the  plaintiff  has  no  equivalent  for  his  lost  lien ; 
and  there  is  as  much  reason  for  allowing  him  to  create  an- 
other as  there  was  for  allowing  him  to  create  the  first.  He 
ought  therefore  to  be  permitted,  in  such  case,  to  make  a  new 
affidavit  and  attachment  bond,  and  have  a  new  writ  and  a 
new  levy,  so  as  to  create  another  incipient  lien  to  be  perfected 
by  judgment,  taking  its  date  from  the  time  of  the  new  levy, 
even  without  express  statute  authorization  beyond  the  general 
provisions. 

§  773.  When  the  attachment  is  invalid. —  The  bond  to  dis- 
solve is  given  by  the  defendant  and  his  surety  on  the  assump- 
tion that  the  attachment  is  valid;  and  the  plaintiff,  as  obligee, 
receives  it  as  a  substitute  for  the  valid  attachment,  knowing 
that  the  contract  may  be  avoided  by  the  obligors  should  it 

1  Albrecht,  In  re,  17  Bankr.  Reg.  90 ;  Stewart  v.  Dobbs,  39  Ga.  82 ; 
287;  Barnstable,  etc.  v.  Higgins,  124  Hartford  Quarry  Co.  r.  Pendleton, 
Mass.  115.  CoHipare  Payne  V.  Able,  4  Abb.  (N.  Y.)  Pr.  460;  Dudley  v. 
7  Busb,  344.  Goodrich,  16  How.  (N.  Y.)  Pr.  189. 

2  Ferguson  i\  Vance,  3  Lea  (Tenn.), 


§§  77-1,  775.]  uoND  SURETIES.  529 

prove  wanting  in  consideration.  There  would  be  no  reciproc- 
ity if  the  plaintiff  should  get  his  claim  secured,  and  give  up 
only  an  illegal  attachment  —  that  is,  give  up  nothing  in  re- 
turn. 

When  he  comes  to  sue  upon  the  bond  the  defendant  and  his 
surety  may  set  up  the  illegality  of  the  attachment  in  defense, 
except  with  regard  to  matter  conceded  by  the  bonding;^  they 
may  under  proper  allegations  inquire  into  the  affidavit,  bond, 
writ,  return,  jurisdiction,  etc. ;  and,  if  the  statute  under  which 
the  suit  was  brought  has  not  been  substantiall}''  followed,  they 
may  succeed  in  avoiding  the  obligations  of  the  bond.^ 

§  774.  Clunuje  in  plaintiff^ s  pleadings. —  The  surety  upon  a 
bond  given  by  the  defendant  to  dissolve  an  attachment  takes 
his  obligation  with  reference  to  the  cause  as  it  then  stands; 
and  should  the  plaintiff  afterwards  so  change  his  pleadings  as 
to  make  virtually  a  new  action,  how  can  it  be  said  that  the 
surety  would  have  obligated  himself  under  such  new  order  of 
things?  He  may  have  been  satisfied  that  the  plaintiff  could 
not  recover  in  the  action,  and  may  therefore  have  been  will- 
ing to  give  the  defendant  present  relief  by  signing  as  his 
bondsman,  though  he  would  not  have  signed  had  the  suit  been 
well  grounded. 

§  775.  Amendments  as  to  surety. —  But,  notwithstanding  the 
bonding,  the  plaintiff  mav  amend  without  relieving  the  de- 

^See    Bunneman    v,    Wagner,    16  Homan  v.  Brinckerhoff,  the  defend- 

Oreg.  433.  ant,  after  personal  judgment  against 

2Vose  V.   Cockroft,  44  N.  Y.  415;  him,  was  sued   on  the  dissolution 

Horaan  v.  Brinckerhoff,  1  Denio,  184;  bond,  and  he  defended  by  pleading 

Kanouse    r.    Dormedy,    3    id.    567 ;  the  invalidity  of  the  attachment  by 

Matter    of    Faulkner,    4  Hill,    598 ;  reason  of  the  absence  of  an  attach- 

Caldwell  v.   Colgate,   7   Barb.    253;  ment  bond.     The  court  held   that 

Bildersee  v.  Aden,  62  id.  175 ;  Hodge  by  the  appearance  of  the  defendant 

V.    Norton,    22   Kan.    374.     Contra:  in    the   attachment  suit,   the    court 

Cruyt  r.  Phillips,  16  How.  (N.  Y.)Pr.  had   jurisdiction   of   tliat   suit,   evi- 

120   (if   the    court's    jurisdiction   is  dently  meaning  jurisdiction  over  the 

independent    of    the    attachment);  person  of  the   defoidant,  for  it  is 

Scaulon  v.    O'Brien,  21   Minn.  434,  added:  "  That  will  not  aid  the  plaint- 

in  exposition  of  Minn.  Gen.  Stat.,  ch.  iff;    he  did  not  hold  the  property 

65,  §  95 ;  Dunn  v.   Crocker,  22  Ind.  under  the  judgment.    .    .    .    He  had 

324    {see  Gass  v.    Williams,   46    id.  no  other  hold  on  the  property  than 

253);  Coleman  v.  Bean,  32  How.  Pr.  such  as  the  attachment  gave  him, 

370;  McMillan  v.  Dana,  18  Cal.  339;  and  that  was  utterly  void  for  want 

Bacon  v.  Daniels,  116  Mass.  474.    In  of  jurisdiction  to  issue  it.'' 
34 


530  defendant's  bonds.  [§§  77G,  777. 

fendant's  surety  from  any  obligation,  if  he  does  not  change 
the  character  of  the  action  b\'"  introducing  new  counts  or  new 
grounds.  It  is  not  just  to  the  surety  that  he  should  be  put  in 
a  worse  condition  than  he  was  in  when  he  signed,  by  any 
amendment  that  would  strengthen  the  old  grounds  or  make 
the  plaintiff's  position  any  better,  and  the  surety's  conse- 
quently worse.  But  amendment  is  allowed  in  practice;  and 
even  if  new  counts  and  new  grounds  are  introduced,  the  surety 
will  be  liable  after  final  judgment,  if  the  judgment  is  not 
based  on  the  new  grounds  or  amended  counts.^ 

§  776.  Sureties  are  not  discharged  by  an  amendment  of  the 
summons  so  as  to  reach  a  third  defendant;-  nor  by  an  amend- 
ment of  pleading  not  affecting  their  obligation;^  nor  b}' an 
amendment  of  one  count  of  a  declaration,  if  the  attachment 
holds  good  on  another;^  but  an  amendment  increasing  the 
demand  would  discharge  them.^  The  bond  would  not  be 
affected  by  the  dismissal  of  one  of  the  defendants  to  the  suit.'^ 

When  it  is  among  the  conditions  of  the  bond  that,  in  case 
the  plaintiff  should  recover,  judgment  shall  be  entered  against 
the  surety  without  notice,  it  may  be  so  entered  though  the 
surety  be  a  non-resident.'^ 

§  777.  In  some  states,  as  in  Arkansas,  the  sureties  on  a 
dissolution  bond  are  deemed  parties  to  the  attachment  suit 
and  subject  to  summary  judgment  without  service  of  notice 
or  process  upon  them.^  In  that  state,  sureties  may  be  sued 
without  their  principal.^ 

When  the  obligation  is  to  pay  the  judgment  in  the  suit,  the 
sureties  are  liable  if  the  judgment  be  against  some  of  the  de- 
fendants while  others  are  dismissed.^''    This  would  not  be  the 

1  Cutter  V.  Richardson,  125  Mass.  ^Kuhn  v.   McMillan,  3  Dill.   372. 
72 ;  Wood   v.    Denny,  7   Gray,  540 ;  See  Weed  v.  Dills,  34  Mo.  483. 
Mann  v.  Brewer,  7  Allen,  202.  «  Fletcher  v.  Menkin,  37  Ark.  206 ; 

2  Christal  v.  Kelly,  88  N.  Y.  285.  Gantt's  Dig.  406. 

3  United  States  v.  Mosely,  7  Saw.  ^Chrisman  v.  Rogers,  30  Ark.  351 : 
C.  C.  265.  Lincoln  v.  Beebe,  11  id.  697.     It  has 

4  Warren  u.  Lord,  131  Mass.  560.         been  held  otherwise  in  Kentucky, 
5 Princeu  Clark,  127  Mass.  599;  Hill     when  the  principal  can  be  served. 

V.  Hunnewell,  1  Pick.  192;  Willis  v.  Page  v.  Long,  4  B.  Mon.  121. 

Crocker,  id.  204.  lo  Leonard    v,    Speidel,    104    Mass. 

6  Poole  V.    Dyer,    123   Mass.    363;  356. 
Cutcheon  v.  Weston,  65  Cal.  37. 


§  777.J  BOND    SUKLTIES.  531 

case  if  parties  were  changed  by  the  plaintiff  after  the  bond  was 
given. ^  The  surety  may  get  acquittance  by  tendering  the  full 
amount  of  the  judgment.^ 

It  has  been  held  that  a  mistake  in  the  bond,  b}'-  which  the 
writ  was  described  as  having  been  issued  from  the  circuit  court 
instead  of  the  district  court,  cannot  avail  the  surety  so  as  to 
release  him  from  his  obligation.^ 

1  Richards   v.   Stower,   114    Mass.        2  Hayes  v.  Josephi,  26  Cal.  535. 
101 ;  Quillen  v.  Arnold,  12  Nev.  234.        »  Ripley  v.  Gear,  58  la.  460. 


CHAPTER  XX. 

THE  CREDITOR'S  CONTESTS  WITH  THIRD  PARTIES. 

I.  Intervention,  in  General §§  778-789 

II.  Junior  Attackers 790-798 

III.  Priority  of  Seizure 799-806 

IV.  Priority  of  Garnishment 807-813 

V.  Simultaneous  Attachment 814-815 

VI.  Claimants 816-826 

VII.  Competition  with  Mortgagees 827-838 

VIII.  Competition  with  Assignees 839-847 

I.  Intervention,  in  General. 

§  7Y8.  In  the  2>ersona1  action. —  So  far  as  the  personal  action 
is  concerned,  there  is  generally  no  reason  for  third  persons 
holding  liens  to  intervene  between  the  plaintiff  and  the  de- 
fendant.^ The  plaintiff,  being  an  ordinary  creditor,  suing  to 
recover  an  ordinary  debt,  cannot  deprive  a  third  person  of 
any  right  wdiich  he  has  against  the  defendant  or  defeat  or 
prejudice  any  lien  which  such  third  person  may  have  upon 
the  defendant's  property.^  Such  third  person  must  prosecute 
any  claim  which  he  has  in  a  separate  and  independent  suit, 
and  not  come  into  a  suit  brought  by  another  to  complicate 
its  proceedings.  It  does  not  matter  to  him  that  the  plaintiff 
in  an  attachment  obtains  a  personal  judgment  against  his 
debtor,  any  more  than  if  it  were  obtained  in  any  ordinary 
action  for  debt.  But  where  an  equitable  attachment  is  sued 
out  by  a  suretx'-  to  reach  lands  alleged  to  have  been  fraudu- 
lently conves^ed  by  his  principal,  the  creditor  may  interfere 
if  the  suret}'^  has  not  paid  the  debt.^ 

§779.  1)1  attachment  suit. —  There  is  generally  no  reason 
for  intervention  in   an  attachment  suit.     As  the  attaching 

1  Sperry    v.    Ethridge,    70   la.    27.         3  Peevey  v.  Cabaniss,  70  Ala.  253 ; 
See  dissent  of  Judge  Daniels  in  Em-     Ala.  Code,  §  3864. 
pire  Type  Co.  v.  Grant,  44  Hun,  434. 

2Stapleton  v.  On;  43  Kan.  170. 


§  TSO.]  IXTp:RVENTIo^^,  in  general.  533 

creditor  begins  his  action  when  he  has  no  lien,  with  the  pur- 
pose of  creating  one,  he  cannot  effect  his  purpose  to  the 
prejudice  of  liens  already  existing.  If  he  causes  the  attach- 
ment of  property  belonging  to  the  defendant  and  possessed 
by  him,  upon  which  no  previous  lien  rests,  it  is  manifest  that 
ordinarily  no  one  is  directly  interested  to  appear  in  the  suit 
but  the  defendant  himself.  If  he  attaches  property  on  which 
some  other  creditor  holds  an  existing  lien  without  possession, 
he  cannot  affect  such  lien-holder's  rights,  since  the  attachment 
is  subject  to  that  lien.  He  can  proceed  only  against  the  debt- 
or's interest  in  the  thing  attached,  and  that  is  the  property 
minus  the  interest  which  the  previous  lien-holder  has  in  it. 
It  therefore  does  not  concern  the  lien-holder  whether  the  at- 
taching creditor  obtains  a  junior  lien  or  not.  He  has  no  inter- 
est to  interplead,  and  hence  no  right  to  come  into  the  case 
and  oppose  the  litigation  going  on  between  the  plaintiff  and 
the  defendant,  or  urge  a  judgment  in  his  own  favor  with  rec- 
ognition of  the  rank  of  his  lien  as  paramount  to  that  of  the 
attaching  creditor.  His  time  to  appear,  if  at  all,  is  after  judg- 
ment to  claim  the  proceeds.  The  hold  which  he  had  upon 
the  property  is  not  broken  by  the  judgment  and  the  sale, 
when  the  sale  is  made  subject  to  his  lien;  and,  when  it  is  not, 
he  follows  the  proceeds,  and  is  awarded  his  proper  rank  as  a 
creditor  in  the  distribution. 

§  780.  The  attaching  creditor,  who  has  perfected  his  hypo- 
thetical lien  of  attachment  by  a  judgment  thereon,  is  in  no 
better  position  in  respect  to  a  prior  lien-holder  than  that  of 
a  junior  mortgagee  who  has  had  his  mortgage  recognized 
by  decree,  in  relation  to  a  senior  mortgagee.  If  the  junior 
may  issue  execution  and  sell  the  property,  the  senior  must  be 
fully  satisfied  out  of  the  proceeds  before  any  can  be  applied 
to  the  payment  of  the  junior.  Indeed,  the  execution  and  sale 
are  primarily  for  the  benefit  of  the  older  lien-holders,  and  the 
plaintiff  in  execution  is,  in  some  sense,  the  agent  of  such  bene- 
ficiaries. It  is  so  when  the  latter  cannot  issue  execution  in 
their  own  names  but  must  follow  the  action  of  the  judgment 
creditor  and  look  to  the  proceeds  for  their  payment.^ 

1  This  is  well  illustrated  by  decis-  holding  a  prior  mortgage  cannot 
ion^  in  Louisiana,  where  mortgage  prevent  the  sale  of  the  mortgaged 
is  a  lien  without  possession.     "  One    property  at  the  suit  of  a  subsequent 


53J:       creditor's  contests  with  third  parties.     [§§  781,  782. 

§  781.  Bdation  of  plaintiff  to  lien-holder. —  If  lien-bearing 
property  is  attached  and  prosecuted  to  judgment,  the  attach- 
ing creditor  cannot  sell  a  part  of  it,  sufficient  to  satisfy  his 
own  claim,  and  leave  the  prior  lien-holder  bereft  of  a  part  of 
his  security.  Were  the  rule  otherwise,  there. would  indeed  be 
good  reason  for  intervention.  '  But,  since  the  plaintiff  is,  in 
a  sense,  the  agent  of  the  senior  lien-holder,  when  he  issues 
execution,  he  is  bound  to  sell  the  whole  of  the  lien-bearinir 
property  attached,  so  as  to  clear  away  the  prior  liens  by  pay- 
ment out  of  the  proceeds,  and  thus  enable  himself  to  satisfy 
his  own  claim  out  of  any  residue.  Under  such  circumstances, 
he  is  in  duty  bound  to  exhaust  the  property  in  order  to  pay 
mortgages  or  other  liens  outranking  his  own;  and  that  duty 
is  correlative  with  the  right  of  the  prior  lien-holders  to  have 
it  exhausted.^  The  payment  of  the  superior  claims  is  the 
first  duty  of  the  plaintiff  in  execution.  It  is  a  condition  pre- 
cedent to  his  privilege  of  making  his  own  money  out  of  the 
property;  it  \s  the  sine  qua  non  of  his  judgment  right.  He 
is  bound  to  sell  all  of  the  mortgaged  property  which  he  has 
attached ;  he  cannot  sell  a  part  to  pay  the  mortgage  in  part 
when  the  mortgage  covers  the  whole  and  the  exhaustion  of 
the  Avhole  is  necessary  to  satisfy  the  lien.^ 

§  782.  Every  portion  of  property  mortgaged  is  liable  for 
the  debt;  the  mortgage  is  toto  in  toto,  et  toto  in  qualihet  parte. "^ 

mortgagee.  He  must  exercise  his  another  would  not  have  the  right 
right  on  the  proceeds:"  Conrad  v.  to  oppose  that  sale  and  to  preserve 
Prieur,  5  Rob.  55;  Tyler  t?.  His  Cred-  his  pledge  in  kind.  His  right  is 
iters,  9  id.  373 ;"  Florence  v.  New  Or-  that  of  being  paid  out  of  the  pro- 
leans  Navigation  Co.,  1  id.  224;  ceeds."  Alexander  v.  Jacob,  5  Mar- 
Fulton  V.  Fulton,  7  id.  73 ;  City  Bank  tin,  634. 

of   New   Orleans   v.  Mclntyre,  8  id.  i  Thelusen  v.  Smith,  2  Wheat.  436 ; 

467;  Bloodworth   v.    Hunter,    9  id.  Parsons    v.    Wells,    17    Mass.    425; 

256;  Joice  v.  Poydras  De  La  Lande,  United  States  v.  Hawkins,  4  Martin, 

6  La.  283 ;  Herbert's  Heirs  v.  Babin,  N.  S.  (La.)  317. 

6    Martin    (N.    S.),'  614;    Casson   v.  2  go  repeatedly  held  in  Louisiana 

La.  State   Bank,  7   id.  281 ;  Rowley  with    reference  to    sales   by  junior 

V.    Kemp,  2  La.    Ann.    360.     "The  mortgagees  when  rights  of  seniors 

proceeds  stood  in  the  place  of  the  were  involved.     Pepper  v.  Dunlap, 

real  estate  and  the  same  preference  16  La.  163,  169;  Florence  v.  Orlean& 

was  retained   on  them:"   Crum  r.  "  Nav.  Co.,  1  Rob.  224;  Moore  u.  Allen, 

Laidlaw,  10  Martin,  468;  Chipella  t7.  10    La.    496;  Elwyn  v.    Jackson,  1'4 

Launsae,  id.  448.     It  was  held  that  id.  411 ;  Adams  v.  Sears,  3  La.  Ann. 

"  the  creditor  whose  pledge  is  seized  144. 

and  offered  for  sale  at  the  suit  of  ^gagleyu.  Tate,  10  Rob.  (La.)  45. 


§§  783,   TSi.]  INTERVENTION,  IN    GENERAL.  535 

Hence,  if  the  right  in  property  of  a  second  mortgagee  (or  of 
an  attachment  judgment-creditor)  should  amount  to  only  one- 
tenth  of  the  value  of  the  property  attached,  he  must  sell  the 
whole,  unless  a  part  is  sufficient  to  satisfy  the  anterior  mort- 
gage, if  allowed  to  sell.  And  when  the  proceeds  of  the  whole 
have  been  brought  into  court,  it  is  time  enough  for  the  cred- 
itor first  in  rank  to  make  his  appearance  and  claim  to  be  first 
paid  out  of  the  proceeds. 

§783.  Lien-holder  secure. —  The  senior  lien-holder  not  in 
possession  has  no  cause  to  intervene  b}'^  reason  of  the  attach- 
ing creditor's  seizure  of  the  property  and  its  coming  into  the 
possession  of  the  court  under  the  attachment.  The  possession 
is  not  adverse  to  him.  The  attaching  is  effected  with  refei'- 
ence  to  his  lien;  or,  rather,  only  the  defendant's  interest  be- 
3'ond  what  he  owes  to  others  and  has  secured  to  them  by 
liens  can  possibly  be  made  available  by  the  attaching  cred- 
itor. He  cannot  set  up  such  adverse  possession  as  would  de- 
feat such  liens,  any  more  than  a  junior  mortgagee  could  thus 
defeat  a  senior,  where  mortgage  is  a  mere  lien.^ 

Everywhere,  in  every  state,  it  is  true  that  lien-holders, 
whether  mortgagees  or  others,  who  have  no  possession  to  be 
disturbed  by  the  act  of  attaching  the  property  on  which  their 
liens  rest,  are  placed  in  no  worse  position  by  the  attachment; 
are  not  prejudiced  by  the  court's  possession  of  the  attached 
property;  are  not  injured  by  the  creation  of  a  new  lien  upon 
it,  and  are  not  deprived  of  any  interest  by  the  perfection  of 
such  new  lien  by  judgment,  or  by  a  sale  of  the  property  to 
vindicate  such  lien  after  first  satisfying  all  prior  liens. 

§  784.  Mortgages  are  not  everywhere  mere  liens;  but  where 
they  are  so,  the  mortgagee  has  no  more  interest  to  appear  as 
an  intervenor  in  an  attachment  suit  than,  a  first  attaching 
creditor  has  to  interfere  with  the  proceedings  instituted  by  a 
second  attacher.  In  both  cases  the  prior  lien  is  secure;  at 
least  the  subsequent  lien  does  not  make  it  insecure.     It  raat- 

1  Bank  of  Louisiana  r.  Stafford,  12  sor  must  pay  the  debt  or  give  up  the 

How.  (U.  S.)  341.     And  the  reason  is  property."     Moore  u.  Allain,  10  La. 

that  the  attachment  suit  is  in  char-  496.     "  It  is  a  real  action,  whether 

acter  like  a  mortgage  suit,  when  the  the   property   mortgaged  is  in   the 

lien  has  been  perfected  bj-  judgment,  hands  of  the  mortgagor  or  of  a  third 

"The  hypothecary  action  is  a  pro-  person."     Elwyn  v.  Jackson,  14  La. 

ceeding  in  rem,  and  the  third  posses-  411. 


530       creditor's  contests  with  third  parties.     [§§  785,  7SG. 

ters  nothing  to  him  that  is  thus  provided  for,  how  many  new 
liens  and  privileges  may  arise.  He  has  no  interest,  and  there- 
fore no  right  to  come  between  the  plaintiff  and  the  defendant 
during  the  pendency  of  their  litigation.^ 

§  785.  Interest  of  third  j^ersons  to  intervene. —  "Whether  or 
not  a  third  person  may  interplead  can  ahva3'S  be  tested  by 
the  question  of  his  interest  to  do  so.  If  he  has  none,  he  has 
no  right  to  complicate  the  case.  If  he  has  interest,  and  it  can 
only  be  asserted  in  somebody  else's  case  and  during  its  pend- 
enc}'-,  he  should  be  permitted  to  interplead  then  and  there. 
He  is  not  precluded  because  some  claimant  has  bonded  the 
attached  property.^  Neither  court  nor  legislature  can  deny 
him  the  opportunity  of  presenting  his  right  and  claim  some- 
where and  somehow.  He  may  be  regulated  b}^  statute  or  by 
the  established  practice,  as  to  whether  he  may  intervene  or 
resort  to  some  other  mode;  whether  he  ma}''  contest  the  pre- 
tensions of  the  plaintiff  and  defendant  in  their  case,  or  in- 
stitute an  original  one  of  his  own;  whether  he  may  lie  still 
till  disturbed  in  some  way  and  then  resort  to  an  injunction  or 
some  other  conservative  remedy.' 

§  786.  A  lien-liolder  in  possession. —  One  cannot  have  his 
possession  disturbed  by  attachment;  he  may  resort  to  legal 
resistance,  either  in  the  attachment  suit  or  otherwise,  as  the 
statutes  or  the  practice  there  may  allow.*  It  has  been  held 
that  the  holder  of  a  deed  of  trust  to  property,  given  by  the 
defendant  after  the  property  had  been  attached,  may  inter- 
vene to  claim  the  property  and  controvert  the  attachment 
proceedings  against  it.^ 

1  Keith  V.  Losier  (la.),  55  N.  W.  King,  121  III.  250;  Paine  r.  Holliday, 
952;  la.  Code,  §2628.  68  Miss.  298;    H.  B.  Claflin   Co.  v. 

2  Dreyfus  v.  Mayer,  69  Miss.  282.        Feiblenian,  44  La.  Ann.  518;  Whalen 
3Romagosa?;.  Nodal,  12  La.  Ann.     v.  McMahon,   16  Colo.  373;  McDon- 

341;  Lewis  v.   Harwood,  28  Minn,  aid  r.  Faulkner,  154  Mass.  34. 

428 ;   Crone   v.    Braun,   23   id.    239 ;  *  Bayer  v.  Grove,  46  Mo.  App.  245 ; 

Rodrigues  v.  Trevino,  54  Tex.  198 ;  Emerson  v.  First  N.  Bank  (Tex.  Civ. 

Adoue  V.  Seeligson  &  Co.,  id.  595:  App.),  25  S.  W.  452.     See  Kimber  r. 

Laclede    Bank    v.    Keeler,    103    111.  Clark,    17    Neb.    403;    Heaverin  v. 

425:   Willis  v.   Thompson,    85  Tex.  Robinson  (Ky.),  21  S.  W.  876;  Round- 

301;  Stansell  v.  Fleming,  81  id.  294;  stone  v.  Holt  (Colo.  App.),  37  P.  35. 

Wear  u.  Sanger,   91  Mo.  348;  Green  5  Bamberger  v.   Halberg,   78  Ky. 

V.  Kelley,  64  Vt.  309;  Hamilton  v.  376. 
Laniphear,     54    Ct.    237;    Frank  v. 


I 


-'  §  787,  788.]  INTERVENTION,  IX    GENERAL.  537 

Where  lien-bearing  property  may  be  attached,  it  is  always 
still  subject  to  the  existing  lien,  and  there  is  no  general  rea- 
son why  there  should  be  intervention  before  judgment,  and  it 
should  not  be  allowed  except  where  the  right  to  do  so  is  se- 
cured by  statute. 

§  787.  Should  intervene  in  lyroceedings  in  rem. —  Here  must 
be  noted  the  radical  difference  between  a  proceeding  i)i  rem 
irrespective  of  persons,  where  the  notice  is  to  all  the  world 
and  all  persons  are  bound  by  the  decree,  and  a  proceeding 
with  respect  to  a  particular  debtor,  where  there  is  summons 
or  notice  to  him  alone,  and  he  alone  can  be  bound  by  the 
judgment. 

In  the  former  case,  lien-holders  must  intervene,  at  some  stao^e 
or  lose  their  rights.  In  some  such  proceedings,  where  a  libelant 
asserts  a  right  to  the  thing,  lien-holders  are  not  allowed  to  ap- 
pear; but  this  rule  is  almost  wholly  confined  to  prize  causes^ 
Avhich  are  prosecuted  under  the  law  of  nations;  and  even  in 
such  causes  it  is  not  inflexible  except  when  the  prize  is  capt- 
ured in  battle.  Wherever  notice  to  all  persons  is  published, 
interested  persons  (unless  they  be  enemies)  are  privileged  to 
appear;  and  even  an  enemy  who  should  deny  the  enemy  char- 
acter, especially  if  he  should  take  the  oath  of  allegiance  to  the 
government  which  is  the  libelant,  might  be  allowed  to  invoke 
the  protection  of  the  court  which  he  is  no  longer  fighting  to 
destroy.  He  could  not  render  the  r<?.5  friendly  or  innocent 
which  had  already  become  hostile  or  guilty,  but  he  could  have 
his  opportunity  of  showing  that  such  status  had  not  been 
acquired.  Ordinaril}'-,  the  government's  right  to  the  thing 
itself,  because  it  was  enem}-^  propert}^^  before  seizure  or  capt- 
ure, is  paramount  to  the  previously  existing  rights  of  all  per- 
sons in  or  to  such  property;  but  it  may  invite  interveuors 
and  ffive  them  standino:  in  court. 

§  788.  When  to  appear. —  Whether  such  invited  persons 
should  come  in  before  or  after  a  judgment  pronouncing  con- 
demnation depends  upon  the  nature  of  their  interests.  If  they 
have  no  motive  to  prevent  a  decree  of  forfeiture  or  confisca- 
tion, they  should  not  appear  till  after  judgment,  when  they 
may  interpose  their  rights  to  be  paid  out  of  the  proceeds; 

iThe  Eenroni,  2  Rob.  (xVd.)  1;  The  Tobago,  5  id.  221;  The  Marianna,  6 
id.  24 ;  The  Frances,  8  Cr.  418. 


538  creditor's  contests  ^YITH  third  parties.        [§  789. 

but  if  their  claims  would  be  lost  upon  failure  to  appear  before, 
the\^  ma}^  intervene  while  the  case  is  pending  and  set  up  their 
rights,  and  contest  the  rights  of  the  libelant.^ 

The  invited  interest-holder  is  cut  off  forever,  if  he  does  not 
respond  when  the  case  is  against  property  for  forfeiture  or 
confiscation,  irrespective  of  all  persons.  Even  an  innocent 
owner  is  remediless  if  he  does  not  appear.-  His  right  is  to  the 
res  like  that  claimed  by  the  government;  and  his  only  re- 
course, after  the  general  notice  of  publication,  is  by  interven- 
tion in  the  proceedings. 

§  789.  When  proceedings  irrespective  of  persons,  with  no- 
tice to  all,  are  in  vindication  of  a  right  in  the  thing,  both  own- 
ers and  lien-holders  are  privileged  to  appear;  and  they  must 
do  so,  at  some  stage,  or  lose  their  only  opportunity  of  secur- 
ing their  interests.  In  brief,  without  further  distinsuishin^ 
between  the  major  and  minor  right,  it  is  sufficient  to  say  that 
third  persons  must  intervene,  either  before  or  after  judgment, 
or  lose  their  interests,  when  the  proceedings  are  in  rem  irre- 
spective of  persons. 

On  the  other  hand,  a  proceeding  in  rem  with  respect  to  a  per- 
son (such  as  an  attachment  proceeding  with  respect  to  a  debtor) 
is  governed  by  the  opposite  rule  as  to  third  persons.  Their 
interests  are  not  cut  off  or  affected  by  judgment  against  the 
debtor;  they  are  not  notified  to  appear  in  the  case;  and  there- 
fore they  have  no  interest  requiring  their  appearance.  Their 
lien  rights  are  protected  at  all  events.  They  need  not  come 
to  court  unless  to  claim  pa3^ment  out  of  the  proceeds  of  the 

1  The  Mary  Anne,    1   Ware,    104.  make  himself  a  party  to  the  cause 

In  this  case,  the  owners  having  re-  before  a  decree  upon  the  merits  is 

frained  from  claiming   and  suffered  to  decide  that  he  cannot  be  admitted 

themselves  to  be  defaulted,  attach-  to  defend  his  rights  at  all."     If  the 

ing  creditors  intervened  pending  the  creditors  had  perfected  their  lien  by 

proceedings  and  set  up  their  lien  by  judgment  before  the  seizure  by  the 

virtue   of   attachment  prior  to  the  libelant,  they   might    have  entered 

seizure  by  the  libelant.    Judge  Ware  the  case  in  good  time  after  decree  of 

said:  "The  interest  of  an  attaching  forfeiture   and  before  the  distribu- 

creditor  can  only  be  defended  by  the  tion  of  the  proceeds,  as  Judge  Ware 

same  means  which  will  be  a  defense  says  a  sailor  for  wages  or  a  material- 

f or  the  owner  whose  interest  is  at-  man  for  supplies  might  do  —  they 

tached ;    that  is,    in    this    case,    by  having  perfect  liens, 
showing  that  no  forfeiture  has  been        2  Semmes  v.  United  States,  91  U.  S. 

incui-red.     To  decide  that  he  cannot  21. 


§§  790,  791.]  JUNIOR    ATTACHERS.  539 

attached  property  after  sale,  when  the  sale  is  not  made  sub- 
ject to  the  liens;  that  is,  with  the  prior  liens  still  resting  on 
the  property. 

II.  Junior  Attachees. 

§790.  Statntorij  rUjlit. —  Junior  attachers  and  the  holders 
of  junior  liens  of  any  kind  have  no  right  to  intervene  in  the 
suit  of  the  first  attacher,  unless  authorized  by  statute  to  ap- 
pear, or  unless  they  have  some  interest  which  requires  asser- 
tion in  this  way. 

In  some  states,  creditors  are  not  permitted  to  sue  out  junior 
attachments,  but  are  required  to  intervene  in  the  first  suit  and 
file  their  claims  under  the  first  attachment,  if  they  choose  to 
create  an}'-  lien  against  the  property  of  the  debtor  which  is 
already  attached.  They  are  placed  upon  equality  with  the 
first  attacher,  and  therefore  have  no  motive  for  suing  out 
other  writs  against  the  same  property.  Thej^  must  appear  in 
the  case,  therefore,  or  the}""  will  have  no  attachment  liens  to 
assert  anywhere  or  at  an}'  time. 

§  791.  In  Indiana,  every  creditor  of  an  attachment  defend- 
ant may  file  his  claim  under  the  original  attachment  while  it 
is  pending;  and,  upon  establishing  his  right,  he  has  an  equal 
lien,  and  shares ^ro  rata  with  the  plaintiff  in  the  distribution 
of  the  proceeds.  Ko  distribution  can  be  had  till  all  the  claims 
of  the  intervenors  have  been  adjusted.^  The  hypothetical  lien 
attaches  as  soon  as  the  claim  is  filed,  and  is  perfected  by 
judgment,  like  that  of  the  original  plaintiff.  And  it  has  been 
held  that  such  claim  need  not  have  been  due  when  the  origi- 
nal attachment  was  sued  out;  and  that,  if  filed  when  the  first 
claim  was  pending,  subsequent  claims  are  not  defeated  by  the 
payment  of  the  first. ^  It  may  be  filed  after  judgment  against 
the  defendant.^ 

1  Fee  V.  Moore,  74  Intl.  319 ;  Cooper  v.  Pollard,  70  id.  723 ;  Leon  v.  Scram, 

V.    Metzger,    id.   544;  Henderson   v.  58  id.  524;  Breslauer  v.  Geilfuss,  65 

Bliss,   8  id.  100:  Schmidt  v.  CoUey,  Wis.   377;  Nassauer  v.   Techner,  65 

29  id.  120.     So  in  Colorado.     Code,  id.  388 ;  Powers  v.  Large,  69  id.  621 ; 

§116;  Daniels  r.  Lewis,  7  Colo.  430.  Espenliain    v.    Meyer,    74    id.    384; 

^Ziegenhagen  v.  Strong,  1  Smith  Dixon  i".  Hill,  5  Midi.   404;  Angier 

(Ind.),  174;  1  Ind.  296.  v.  Ash,  26  N.  H.  99;  Owenu.  Dixon, 

3  Juilliard  v.  May,  130111.  87;  Bate-  17  Ct.  492;  Peck  v.  Whiting,  21  id. 

man  v.  Ramsey,  74  Tex.  589;  Cook  206. 


540 


OREDITOE  S    CONTESTS    WITH    THIRD    PARTIES. 


[iT9f 


§  792.  It  is  not  generally  allowable  for  a  junior  attacher  to 
come  into  a  senior's  suit  to  contest  the  debt  for  which  the  lat- 
ter has  sued  and  attached.  The  subordinate  interest  which 
be  has  acquired,  by  the  subsequent  attachment  of  the  same 
property,  constitutes  no  proper  basis  for  intervention.^  Such 
contest  is  usuall}^  deferred  till  the  time  of  the  distribution  of 
the  proceeds.  But  a  judgment  creditor  may  intervene  in  an 
attachment  suit  brought  unauthorizedly  on  a  debt  not  due,  to 
have  a  default  set  aside.^ 

As  a  general  rule,  one  attaching  creditor  cannot  intervene 
in  the  suit  of  another  to  defeat  it  for  irregularities  in  the  pro- 
ceedings,* but  may  for  illegality  or  fraud,^  and  without  giving 
bond,  in  Texas,  when  fraud  is  the  ground.^  But  if  the  affi- 
davit fails  to  show  debt,  the  attachment  may  be  vacated  on 
application  of  one  who  has  acquired  an  interest  subsequently 
to  the  issue  of  the  attachment.^  And  it  has  been  held  that 
the  judgment  in  favor  of  a  senior  attacher,  if  void  for  want 
of  service,  may  be  vacated  on  the  motion  of  a  junior  attacher.' 


1  Ward  V.  Howard,  12  Ohio  St.  158 ; 
Bank  of  Fayetteville  v.  Spurling,  7 
Jones'  (N.  C.)  L.  398  {see  Jacobs  v. 
Hogan,  85  N.  Y.  243);  Harrison  v. 
Pender,  Busbee  (N.  C),  78.  Contra, 
under  statute:  Swift  v.  Ci'ocker,  21 
Pick.  241 ;  Baird  v.  Williams,  19  id. 
381 ;  Carter  v.  Gregory,  8  id.  165. 

2  Schilling  v.  Deane,  36  111.  App. 
513.  See  Whalen  v.  McMahon,  16 
Colo.  373. 

3  Pace  V.  Lee,  49  Ala.  571 ;  Blair  v. 
Puryear,  87  N.  C.  101 ;  Sims  v.  Goet- 
tle,  82  id.  S68 ;  Copeland  v.  Insurance 
Co.,  17  S.  C.  116;  Metts  v.  Insurance 
Co.,  id.  120;  Ball  v.  Clafflin,  5  Pick. 
303;  Landauer  v.  Vietor.  69  Wis. 
434 ;  Isham  v,  Ketchum,  46  Barb.  43 ; 
III  re  Griswold,  13  id.  412  {see 
Jacobs  V.  Hogan,  85  N.  Y.  243); 
Ward  V.  Howard,  12  Ohio  St.  158; 
Van  Arsdale  v.  Krum,  9  Mo.  397; 
Whipple  u  Cass,  8  la.  126;  Rudolph 
V.  McDonald,  6  Neb.  163;  Moresi  v. 
Swift,  15  Nev.  215;  Mendes  v.  Freit- 


ers,  16  id.  388;  Bank  of  Augusta  v. 
Jaudon,  9  La.  Ann.  8;  Fridenburg 
V.  Pierson,  18  Cal.  152;  McBride  v. 
Floyd,  2  Bailey  (S.  C),  209;  Kincaid 
V.  Neall,  3  McCord  (S.  C),  202;  Cam- 
berford  v.  Hall,  id.  345;  Walker  v. 
Roberts,  4  Rich.  (S.  C.)  561. 

*  Rice  V.  Dorrian,  57  Ark.  541 ; 
Hardware  Co.  v.  Deere,  53  id.  140; 
Grabenheimer  v.  Rindskoff,  64  Tex. 
49,  Nenney  v.  Schulter,  62  id.  327; 
Pierce  v.  Jackson,  6  Mass.  244*  Smith 
V.  Gottinger,  3  Ga.  140;  Lowenstein 
V.  Aaron,  69  Miss.  341;  Speyer  v. 
Ihmels,  21  Cal.  281.  Compare  First 
N.  Bank  v.  Cochran  (Miss.),  14  So. 
439. 

5  Grabenheimer  v.  Rindskoff,  64 
Tex.  49. 

6  Smith  V.  Davis,  29  Hun,  801 ; 
Paine  v.  Holliday,  68  Miss.  298. 

7  Ferguson  v.  Gilbert,  17  S.  C.  26 
(but  see  Derby  v.  Shannon,  19  S.  C. 
526);  KoUette  v.  Seibel  (Tex.  Civ. 
App.),  26  S.  W.  863. 


§§  793-795,]  JUNIOR  attachers.  541 

§  793.  When  the  debt  is  admitted  by  an  interplea,  the 
plaintiff's  answer  to  it  need  not  aver  the  debt.^  If  the  inter- 
venor  does  not  plead  specially  the  invalidity  of  the  attach- 
.  ment  writ  (where  he  has  the  right  to  attack  it),  it  will  stand 
without  support  by  evidence  on  the  part  of  the  plaintiff.^  If 
he  comes  into  court  to  claim  the  proceeds,  he  cannot  question 
the  grounds  of  the  attachment  resulting  in  a  sale  and  the 
very  money  which  he  seeks.^  In  Kansas,  if  an  interv^enor 
gives  a  redeliver}^  bond,  he  is  estopped  from  denying  the  de- 
fendant's title  or  the  rightfulness  of  the  plaintiff's  attachment.'* 

§  794.  To  maintain  an  attachment  lien  and  tlie  right  of 
setting  aside  a  prior  seizure,  the  appearer  must  establish  the 
validity  of  his  own  levy.  The  affidavit  of  his  attorne}^  to  facts 
not  within  his  personal  knowledge  is  not  sufficient  to  estab- 
lish that  fact.^  It  is  not  the  best  evidence  of  which  the  fact, 
if  true,  is  susceptible,  for  the  record  is  better.  And  if  the 
necessary  allegation  is  not  proved,  the  second  attacher  fails 
to  show  his  right  to  appear  for  the  purpose  of  vacating  the 
first.''' 

§795.  Fraud. —  It  is  competent  for  a  junior  attacher  to 
contest  the  lien  of  the  senior  on  the  ground  of  fraud  in  ob- 
taining it."^  He  may  allege  and  prove  collusion  between  the 
senior  and  the  defendant.     He  may  stipulate  for  costs  and 

Meyberg  v.  Jacobs,  40  Mo.  App.  252,  were   distinsviished ;  the  court 

128.  remarking   Avith   regard  to  each  of 

^  Yarborough  v.  Weaver  (Tex.),  23  tliose  cases :  ' '  The  party  intervening 

S.  W.  771 ;  Publishing  Co.  v.  Hitson,  was   a  judgment  creditor  and-  his 

80  Tex.  234.  lien  was  secured  by  a  levy  upon  ex- 

3  First  N.  Bank  v.  Greenwood,  79  ecution.     A  manifest  distinction  has 

Wis.  269.  always  been  made  between  theposi- 

•iBowdenu  Burnham,  59  Fed.  752.  tion  of  judgment  and  general  cred- 

5  Everitt  v.  Everitt  Manuf.  Co.,  58  itors."     Is  not  the  holder  of  an  in- 

Hun,  604;  National  Broadway  Bank  cipient    attachment  lien   to   be  es- 

V.  Barker,  128  N.  Y.  603;  Hodgman  teemed     something    more    than    a 

V.  Barker,  id.  601 ;  Martin  Clothing  general  creditor?   Perhaps  not  when 

Co.   V.  Page,  1  Tex.  Civ.  App.  537.  he  appears   to  contest  a  perfected 

Compare  Carpenter  v.    Bodkin,   36  lien,  but  otherwise  when  he  seeks  to 

Minn.    183;  Adler   v.    Anderson,  42  vacate  a  prior  attacluuent  not  yet 

Mo.  App.  189.  matured  by  judgment. 

6 Nenney  v.  Schulter,  62  Tex.  327 ;  '^Johnston    v.    Heidenheimer,    65 

Tim  V.  Smith,  93  N.  Y,  87,  in  wliicli  Tex.    263;    Heidenheimer   v.    John- 

Ruppert  V.    Haug,   87   id.    141,   and  ston,  76  id.   200;  Bateman  v.  Ram- 

Steuben  Co.  Bank  v.  Alberger,  78  id.  scy,  74  id.  589. 


5-12  CREDITOR'S    CONTESTS    WITH    THIRD    PARTIES.       [§§  796,  797. 

then  be  allowed  to  defend  against  the  first  attachment,  in  the 
name  yet  without  the  consent  of  the  defendant,  in  order  to 
secure  his  own  interests,  and  relieve  the  property  from  the 
prior  attachment  to  make  way  for  his  own.  And  what  he 
may  thus  do,  when  goods  have  been  thus  collusively  attached 
in  the  hands  of  the  defendant,  he  may  also  do  when  they  have 
been  reached  b}^  garnishment,  or  when  a  debt  due  by  the  gar- 
nishee has  been  thus  reached.  He  may,  to  defeat  the  senior's 
attachment  or  garnishment,  aver  and  prove  that  the  debt 
claimed  has  been  paid,  or  that  it  never  existed.  He  may  even 
have  a  judgment  rendered  in  favor  of  the  senior  annulled  on 
the  ground  of  fraud  and  collusion  with  the  defendant.  The 
case  is  stronger  if  the  junior  attacher  alread}'  has  judgment 
on  his  claim  against  the  same  defendant.  He  may  then  con- 
test the  prior  judgment  lien  of  the  senior  on  any  ground 
showing  that  the  latter  had  no  cause  of  action.  Both  plaint- 
iffs being  in  court,  he  may  proceed  to  set  aside  such  judgment 
by  rule,  or  otherwise,  to  direct  the  distribution  of  the  funds 
arising- from  the  sale  of  the  property  seized,  or  the  debt  paid 
into  court  b}^  the  garnishee. 

§  796.  The  junior  attaching  judgment  creditor,  not  being 
either  a  party  or  a  privy  to  the  suit  of  the  senior  attach ini-; 
judgment  creditor,  has  the  same  right  to  attack  it  on  anv 
ground  when  it  stands  in  the  way  of  his  interests  and  rights 
that  any  stranger  to  the  litigation  would  have  under  similar 
circumstances.  Whoever  is  without  right  and  power  to  ap- 
pear and  defend,  to  contest  and  appeal,  cannot  be  concluded 
b}^  a  judgment  against  another  which  affects  himself,  in  an 
attachment  suit,  in  which  fraud  in  obtaining  preferences  is 
more  common  than  in  ordinary  causes. 

Under  circumstances  allowing  an  intervener  to  claim  at- 
tached property,  he  may  do  so  without  reference  to  any  con- 
troversy between  the  parties;  the  judgment  cannot  affect  the 
right  of  property  as  between  himself  and  the  defendant.^ 

§  797.  The  court  may  vacate  the  senior  attacher's  judgment 
on  the  ground  of  fraud  and  thus  wholly  destroy  his  lien.  It 
is  not  essential  that  the  defendant  be  a  party  to  the  fraud. 
"Where  the  junior  attacher  has  a  judgment  against  the  de- 
fendant, and  then  attacks  the  prior  judgment  on  the  ground 

1  Brown  v.  McGehee,  38  Ark.  329. 


§^  798,  799.]  pitiorjTY  of  seizure.  543 

of  fraud,  a  court  of  law  may  determine  the  question;  and, 
even  if  he  has  yet  no  judgment,  a  court  of  equity  would  cer- 
tainly be  competent  to  inquire  into  the  senior's  judgment 
when  attacked  on  the  ground  of  fraud.^ 

§  798.  There  are  many  circumstances  under  which  the  rights 
and  interests  of  third  persons  are  better  protected  and  en- 
forced by  interpleas  in  an  attachment  suit.  If  one  has  a  legal 
interest  in  defeating  the  claim  of  the  attaching  creditor,  he 
may  properly  intervene;  for  instance,  he  may  plead  prescrip- 
tion or  any  other  defense  if  the  defendant  is  insolvent.^ 
Intervention  was  held  the  proper  remedy  for  judgment  cred- 
itors of  the  attachment  defendant  who  souirht  relief  against 
an  attachment  which  they  averred  to  be  a  fraud  upon  their 
rights.^  And,  on  the  ground  that  an  attachment  was  im- 
properly and  fraudulently  levied,  junior  attachers  have  been 
received  as  intervenors  in  the  proceeding  under  the  first  at. 
tachment  to  have  it  quashed;  they  alleging  that  they  have 
an  interest  thus  to  appear,  because  the  first  attachment,  if 
prosecuted  to  judgment  and  execution,  would  leave  no  prop- 
erty of  the  defendant  out  of  which  the  juniors  could  make 
their  money.*  A  junior  vacated  the  senior  attachment  on 
motion  and  received  the  proceeds  of  sale.  The  vacating  order 
was  reversed  on  appeal,  but  it  was  held  that  the  junior  could 
not  be  compelled  to  refund.' 

III.  Prioeitt  of  Seizure. 

§  799.  Retroaction. —  Judgments,  so  far  as  attachment  liens 
are  concerned,  retroact  to  the  date  of  the  respective  levies  so 
as  to  determine  the  relative  rank  of  competitors,  as  a  general 
rule.^ 

1  Smith  V.  Gottinger.  3  Ga.  140 :  Rogers  v.  Bonner,  45  id.  379 ;  State 
Hale  u.  Chandler,  3  Mich.  531 ;  Reed  v.  Harrington,  28  Mo.  App.  287; 
V.  Ennis,  4  Abb.  Prac.  393.  Hall  v.  Stephens,   65  Mo.   670 ;    En- 

2  New  Orleans,  etc.  v.  Beard,  16  worthy.  King,  50  id.  477;  Bruce  r. 
La.  Ann.  345.  Vogel,  38  id.  105;  Field  v.  Milburn, 

SGilkerson,  etc.  v.   Bond,  44  La.  9id.  49G;  Loubat  r.  Kipp,  9  Fla.  60 ; 

841;  Davis  u.  Eppinger,  18  Cal.  378;  Nutter  v.  Connet,    3   B.    Mon.    203; 

Harvey  v.  Jewell,  84  Ga.  234.  Claplin  v.  Furstenheim,  49  Ark.  802; 

*Speyeru.  Ihmels,  21  Cal.  1280.  Hanauer  v.  Casey,  26  id.  352;  Har- 

SHaebler  v.  Myers,  58  Hun,  179.  rison  v.  Trader,  29  id.  85;  Smith  i". 

« Lynch  v,    Crary,   52  N.    Y.    18;  Liud,  29  111.  30  (see  Smith  v.  Clinton 


5J:-i  creditor's  contests  with  third  parties.         [§  SUU. 

In  some  states  priority  is  accorded  in  the  order  of  the  issu- 
ance of  the  writs  or  delivery  to  the  executive  officer.^  When 
the  officer  does  not  execute  them  in  the  same  order,  it  is  said 
that  the  court  may  fix  the  priority.^  The  ranlv  of  attachments 
is  fixed  and  regulated  by  law  — not  equity.^  And  the  rule  is 
strict." 

The  Georgia  code,  section  3331,  has  been  construed  to  fix 
priority  of  liens  by  the  dates  of  judgments,  when  an  attach- 
mant  lien  comes  in  conflict  with  an  ordinary  judgment,  though 
the  lev}^  of  the  attachment  be  older  than  such  ordinary  judg- 
ment, and  even  older  than  the  commencement  of  the  suit  re- 
sulting in  such  judgment.  A  junior  creditor  cut  up  his  claim 
into  demands  of  $100  each,  sued  before  a  justice  of  the  peace 
by  ordinary  personal  action,  thus  obtained  judgments  ante- 
dating a  previously  instituted  attachment  suit  in  which  the 
levy  was  anterior  to  the  suits  in  the  justice's  court,  and  he 
was  thus  allowed  to  forestall  the  attachment  lien.^  But  this 
is  anomalous. 

§  800.  As  to  time  of  attaching. —  In  South  Carolina  and 
Pennsylvania,  attachments  levied  on  the  same  day  rank 
equally.^  They  are  deemed  simultaneous;  and  everywhere 
simultaneous  attachments  rank  equally.     But  the  rule  is  dif- 

Bridge  Co.,  13  111.  App.  572);  Grigg  v.    Commonwealth,    1    id.    310.     It 

V.  Bank,  59  Ala.  311  {see   DoUins  v.  would  seem  that  a  senior  attacher's 

Lindsey,  89  Ala.    217);    Crocker  v.  af^ew?^^  to  have  his  claim  served  by 

Radclitfe,    3    Brev.     26;    Crownin-  other  means  than  the  attachment 

shield  V.   Strobel,  2  id.   80 :   Cary  v.  ought  not  to  affect  his  superiority 

Gregg,    3    Stewart,    433;     Heye    v.  over  his  junior;  but  see  Sullivan  u. 

Moody,    67    Tex.    615:     Hervey    v.  Cleveland,  62  Tex.  677. 

Champion,   11   Humph.    569;    Atlas  3  Alley  u.  Myers,  2  Tenn.  Ch.  206. 

Bank  v.  Nahant  Bank,  23  Pick.  488 ;  Held  in   New  Hampshire  that  the 

Murray  v.  Gibson,  2  La.   Ann.   311.  law  of  priority  is  strict.     Kittredge 

An  attachment  ranks  a  junior  exe-  v.  Gifford,  62  N.  H.  134. 

cution.     Eddy  v.  Weaver,   37  Kan.  4  Burnham  v.  Blank,  49  Mo.  App. 

540 ;  Brown  v.  Tucker,  7  Colo.  30.  56. 

1  Laribee  v.  Parks,  43  Kan.  436 ;  ^  Andrews  v.  Kaufmans,  60  Ga. 
Gregorys.  Adler,  56  Ark.  S92;  Mans-  669  — Jackson  dissenting,  id.  673. 
field's  Dig.,  §  325;  Pach  u  Gilbert,  Ordinarily,  an  execution  levied  after 
124  N.  Y.  612;  N.  Y.  Code  Civ.  Proc,  an  attachment  does  not  rank  equally 
§^697,1406-7.  S'ee  Sutton  v.  Stev-  with  it.  Paltzerv.  Bank,  145  111.  177. 
ens,  41  Mo.  App.  42;  Sanger  u.  Tram-  «Steffens  v.  Wanbosker,  17  S.  C. 
well,  66  Tex.  361.  475 ;  Yelverton  v.  Burton,  26  Pa.  St. 

2  State  u.  Harrington,  szfpra ;  Ken-  351. 
non  V.  Ficklin,  6  B,  Mon.  415 ;  Million 


§  801.]  PRIOKITY    OF    SEIZURE.  545 

ferent  in  most  of  the  other  states.  Generally,  the  seizure 
lec^ally  made  pridTrto  subsequent  ones  on  the  same  day,  though 
anie-dating  them  but  an  hour,  or  even  a  few  minutes,  is  en- 
titled to  the  higher  rank.'     The  date  fixes  the  lien.^ 

Simultaneous  attaching  will  be  deemed  to  have  taken  place 
when  several  writs  have  been  returned  as  executed  on  the 
same  diiy,  if  there  is  nothing  to  indicate  the  exact  time  of  the 
da}^  and  all  the  creditors  acquiesce  in  the  return.  The  officer 
ma}'  be  required  to  specify  the  precise  order  of  the  levies  and 
to  state  at  what  o'clock  each  was  made,  though  his  return 
cannot  be  contradicted;  it  is  good  as  far  as  it  goes;  it  may 
be  completed  but  cannot  be  disregarded.  It  would  be  no 
contradiction  of  the  return  should  the  exact  time  of  the 
seizure  be  proved  by  parol,  provided  the  evidence  do  not  es- 
tablish a  different  day  from  that  nominated  in  the  official 
report;  and  parol  evidence  has  been  allowed  when  the  officer 
could  not  or  did  not  make  his  return  precise  as  to  the  hour  and 
minute  so  as  to  solve  the  question  of  priority  among  compet- 
ing attachers. 

§  801.  Return  slioiving  the  time.— It  tlie  hour  is  specified  in 
the  return  of  one  writ,  but  not  in  that  of  another  returned  as 
served  on  the  same  day,  must  the  first  necessarily  have  priority  ? 
It  has  been  thought  such  is  the  case,  and  that  the  latter  return 
could  not  be  supplemented  so  as  to  render  it  more  definite;^ 
but  if  the  first  be  returned  as  served  at  noon,  there  seems  to 
be  no  good  reason  for  the  presumption  that  the  second  was 
served  later  on  the  same  day.  The  first  has  no  vested  right 
of  priority  if  the  second  was,  in  fact,  served  at  the  same  time 
or  at  a  preceding  hour.  Under  such  circumstances  the  fact 
becomes  important ;  and  the  sheriff  not  only  ma\'^  but  should 
show  it  by  an  additional  and  more  pointed  return,  if  in  his 
power  to  do  so.  It  Avould  not  be  contradictory  of  his  first 
return.     If  not  in  his  power,  there  seems  no  good  reason  why 

iGomilla  v.  Milliken,  41  La.  Ann.  Emery,  16  id.  359;  Neale  v.  Ultz,  75 

116;  Lick   v.  Madden,  36   Gal.   208;  Va.  480. 

Tufts  V.  Cairadine,  3  La.  Ann.  430;        spjichardson  v.  Adler,  46  Ark.  43; 

Shove  V.  Dow,  18  Mass.  529;  Brain-  Brown  v.  Tucker,  7  Colo.  30;  Emery 

ard  V.  Bushnell,  11  Ct.  16;  Bissell  v.  v.  Yount,  id.  107;  Striplin  v.  Cooper, 

Nooney,    33    id.    411;    Thurston    v.  80  Ala.  256 ;  Cocks  v.  Varney,  45  N. 

Huntington,  17  N.  H.  438;  Taylor  v.  J.  Eq.  72. 

3  Fairfield  v.  Payne,  23  Ue.  498. 
35 


616       creditoe's  contests  with  third  parties.     [§§  802,  803. 

the  fact  should  not  be  brought  out  by  the  testimon}'-  of  an\'- 
competent  witness  who  can  establish  it.  It  must  be  borne  in 
mind  that  the  return  does  not  create  the  lien  or  fix  the  order 
of  privilege;  it  is  the  act  of  attaching  which  does  that;  — 
the  return  is  but  the  evidence  of  the  act  and  of  the  time  of 
its  performance.^ 

§  802.  If  several  writs  are  executed  at  so  nearly  the  same 
time  that  priority  cannot  be  distinctly  accorded  to  any  one, 
they  should  all  rank  alike.-  So,  in  all  cases  of  doubt,  when 
neither  emendation  of  the  returns  nor  parol  evidence  is  per- 
missible, when  neither  can  settle  the  question  even  if  admitted, 
or  when  all  parties  acquiesce  in  the  returns  or  are  obliged  so 
to  do,  the  attachments  must  be  treated  as  simultaneous. 
There  are  cases  in  which  a  wronged  attacher  may  have  his 
action  against  the  officer  because  of  a  return  giving  him  rank 
below  that  to  which  he  is  entitled,  though  he  may  be  unable 
to  expose  the  wrong  in  contest  for  priority  and  to  establish 
the  fact  that  his  writ  was  really  executed  prior  to  that  of  his 
competitors. 

An  attachment  by  the  creditor  of  an  individual  partner  will 
not  affect  the  lien  of  a  senior  attacher  who  is  the  creditor  of 
the  partnership.^ 

§  803.  Successive  levies. —  "When  property  has  been  attached, 
a  second  attachment  may  be  laid  on  it;  and,  should  the  first 
be  dismissed,  the  second  may  hold  against  the  property  of 
the  debtor.*  It  has  been  held  that  if  the  first  be  prosecuted 
to  judgment  upon  an  answer  by  a  garnishee  served  after  the 
return  of  the  writ,  the  later  attaching  creditors  are  not  fore- 
stalled by  such  judgment.^  If,  however,  the  return  shows 
that  all  the  property  and  credits  of  the  defendant,  in  the 
hands  of  the  garnishee,  have   been  attached,  the  creditor  is 

1  In  real-estate  attachment  there-  Dow,  13  Mass.  534;  Eockwood  v. 
turn  has  much  to  do  with  tha  fact  of  Varnum,  17  Pick.  294. 
attaching.  It  is  essential  in  Maine,  ^  Cunningham  v.  Gushee,  73  Me. 
to  the  creation  of  the  lien,  that  the  417.  See  Walts  v.  Nichols,  89  N.  Y. 
officer  make  return  to  the  register  of  Sup.  Ct.  276;  Moody  v.  Lucier,  62 
deeds.     Bessey  v.  Vose,  73  Me.  217.  N.  Y.  584. 

2  State  V.  Harrington,  28  Mo.  App.  4  Coffriu  v.  Smith,  51  Vt.  140.  See 
292;  True  v.  Emery,  67  Me.  31 ;  Wil-  People's  Bank  v.  West,  67  Miss,  729. 
son  V.  Blake,  53  Vt.  313;  Shove  v.  5  Southern  Bank  v.  McDonald,  46 

Mo.  31. 


^  804.]  PRIOUITY    OF    SEIZUIIE.  547 

not  to  be  forestalled  b}^  subsequent  attachers  merely  because 
the  garnishee's  sworn  acknowledgment  is  made  after  the 
return.  In  the  practice  almost  everywhere,  the  garnishee  is 
bound  from  the  date  of  the  service  of  the  writ  and  interrog- 
atories upon  him ;  and  when  he  afterwards  answers  and  be- 
comes charged,  there  is  retroaction  to  the  time  of  the  service, 
so  that  the  creditor's  lien  takes  date  from  that  time;  and  no 
subsequent  attachment  or  garnishment  can  outrank  it  when 
the  privileges  come  to  be  marshaled. 

§  804.  A  first  attachment  defectively  served  is  outranked 
by  a  second  properly  served,  if  the  defect  be  not  corrected  till 
after  the  second  service.^  So  when  an  attachment,  laid  by 
attorne\'s  without  authority,  was  ratified  by  the  plaintiff  after 
a  second  one  had  succeeded  it,  the  latter  was  of  the  higher 
rank.^  A  creditor  sued  to  annul  a  sale  of  goods  as  fraudulent. 
Another  creditor  attached  the  goods.  There  was  service  in 
the  first  case  before  the  levy  in  the  second:  the  first  had  pri- 
ority.^ Attached  property  was  claimed  as  exempt.  It  was 
subsequently  attached  by  a  creditor  not  affected  by  the  ex- 
emption law.  Upon  the  debtor's  waiving  exemption,  after 
the  second  attachment,  the  first  had  priority.'*  An  insufficient 
attachment  petition,  amended  after  a  second  attachment  had 
been  laid,  was  corrected  too  late  to  give  the  first  levy  prior- 
ity.^ Attachment  ranks  above  the  sheriff's  taking  possession 
of  mortgaged  goods  at  the  request  of  the  mortgagee,  when  no 
notice  was  given  by  the  sheriff  as  required  by  statute.®  A 
second  attachment  on  property  in  the  sheriff's  hands,  by  a 
creditor  whose  first  has  been  vacated,  does  not  revive  the  in- 
choate lien  of  the  first.''  When  the  first  attacher  dismissed 
his  levy  and  then  garnished  the  clerk  of  court  who  held  the 
proceeds  of  the  property  that  had  been  sold  while  under  at- 

i  Kittredge  v.   Gifford,  62   N.   H.  3  Jefferson   Co.  Sav.  Bank  v.   Mc- 

134;  Albrecht  v.  Long,  27  Minn.  81 ;  Dermot  (Ala.),  10  So.  154. 

Russell  V.  Lavvton,  14  Wis.  202.  *  Wallace  v.  Swan,  6  Dak.  220. 

2  Caruth,    etc.    v.  Deere,   53  Ark.  &  Bauer    v.    Deane,    33    Neb.    487 ; 

140;   Johnson   v.   Johnson,   31    Fed.  Peck   v.  Sill,  3   Ct.  157;  BuiTows  i'. 

700;  Taylor  v.  Robinson,  14  Cal.  396;  Stoddard,  id.  431. 

Wood  V.  McCain,  7  Ala.  800 ;  Baird  6  Meacham  v.  Strong  (Wash.),  13 

V.  Williams,  19   Pick.   381 ;  Mechem  P.  107. 

on  Agency,  §  1G8.  '  Anderson  v.  Land,  5  Wash.  403. 


5iS       ckeditok's  contests  with  third  parties.     [§§  805,  80G. 

tachment,  he  lost  his  priority  over  a  second  attacher  who  did 
not  dismiss.^ 

A  junior  attacher  sued  to  have  his  lien  decreed  prior,  on  the 
ground  that  the  senior  had  falsely  alleged  that  his  claim  was 
not  secured  by  lien.  As  no  facts  were  alleged  showing  that 
the  senior  had  a  lien,  the  complaint  was  insufficient.^ 

§  805.  If  the  first  attachment  has  irregularities  which  are 
amendable,  a  second  one  cannot  supersede  or  outrank  it  so 
as  to  cut  off  amendment  and  take  its  place ;^  but  if  the  first 
be  materially  altered  by  way  of  emendation,  the  second  will 
acquire  priority.*  The  junior  cannot  set  aside  the  senior's 
attachment  by  a  bill  in  equity,  because  of  the  insufficiency  of 
the  affidavit.^  But  if  it  is  without  statutory  authorization, 
owing  to  incurable  defects  of  affidavit  or  complaint,  grounds 
for  the  remedy  or  cause  of  action,  he  may  have  it  set  aside 
at  \ii\s^,^ provided  he  has  an  interest  to  do  so;  that  is,  he  must 
have  a  valid  lien  himselfJ  If  the  senior's  attachment  is  void, 
the  proceeds  of  sale  following  it  may  be  claimed  by  a  junior 
Avhose  lien  is  valid.^  By  taking  judgment  for  too  much,  the 
first  attacher  has  been  held  to  have  vacated  his  attachment 
as  to  subsequent  attachers,^  But  he  may  save  his  judgment 
by  entering  a  remittitur,  if  there  was  no  fraud. ^"  It  is  held 
that  a  junior  may  recover  when  fraudulent  senior  attachments 
have  caused  litigation  which  prevented  him  from  getting  his 
rights.^^ 

§  806.  When  a  fund  has  been  seized,  or,  indeed,  any  prop- 
erty or  credit,  the  officer  in  possession  notes  the  date  of  sub- 
sequent seizures  in  the  order  in  which  the  writs  come  into  his 
hands,  and  returns  the  attachments  accordingly,  since  there 
are  no  overt  acts  of  re-seizure.^^     Other  officers  cannot  attach 

1  Tootle  V.  Miner  (Kao.),  24  P.  40l\     Proc.  191 ;  Tim  v.  Smith,  65   How. 

2  Shea    V.    Robinson  (Cal.),  85   P.     Pr.  199. 

1022.  8  Alexander   v.  King,  87  Ala.  643. 

3  Nenney  v.  Schluter,  62  Tex.  327 ;  ^  Pierce  v.  Partridge,  3  Met.  44 ; 
Henderson  v.  Stetter,  31  Kan.  56.  Miller  v.  Clark,  8  Pick.  412;  McCarn 

4  Clough  V.  Curtis,  62  N.  H.  409.        v.  Rivers,  7  la.  404. 
5Fridenberg    v.    Pierson,    18   Cal.       lo  Fulton  v.    Wadsvvorth,    7  Cush. 

152.      Compare   Bank    of  Rome  v.  587.     Compare  Leighton  v.  Lord,  7 

Haselton,  15  Lea,  216.  Fos.  237. 

6  Hawes   v.  Clement,  64  Wis.  152.  ^  Zadtik  v.  Shafer,  77  Tex.  501. 

V  Williams  r.  Waddell,  5  N.  Y.  Civ.  12  Bergman   v.    Sells,    39    Ark.  97; 


§§  807,   S^S.]  PKIOlilTV    OF    GAENISUMENT.  549 

SO  as  to  deprive  hira  of  the  possession  acquired  by  the  first 
lev}^;  but  all  subsequent  attachments  should  be  laid  upon  the 
first,  and  be  marshaled  in  due  order,  as  Ihe  statute  may  pre- 
scribe.^ 

IV.  Pkiokity  of  Garnishment. 

§  807.  Simultaneous  service. —  When  a  debtor  is  about  to 
abscond,  or  is  a  non-resident  about  to  fail  in  business,  yet  has 
property  in  the  hands  of  third  persons,  it  is  common  for  crecj- 
itors  to  sue  out  attachments  and  summon  third  persons  as 
garnishees,  in  great  haste,  making  quite  a  race  for  priority. 
Under  such  circumstances  it  is  very  common  for  several  writs 
to  be  sued  out  simultaneously,  or,  what  is  the  same  thing, 
served  simultaneously;  and  the  notices  to  garnishees,  in  the 
hands  of  one  officer,  may  be  served  about  the  same  time.  The 
general  rule  that  the  first  attachment  gives  priority  of  lien 
over  subsequent  ones  applies  to  the  first  garnishment  likewise. 
When  more  than  one  plaintiff  garnish  the  same  person,  they 
rank  in  the  order  of  the  dates  of  the  respective  attachments 
of  property  in  his  hands  or  of  credit  due  the  defendant;  but 
in  some  states  (as  in  ISTebraska)  the  justice  who  issued  the 
process  first  served,  determining  the  respective  amounts  due 
the  different  attachers,  may  decide  upon  the  rank  of  each.'^ 
If  the  garnishee  is  summoned  in  two  cases,  the  second  is  some- 
times delayed  till  answer  in  the  first.^ 

§  808.  Duty  of  the  officer  issuing  ivrits. —  The  clerk  of  court 
ought  to  issue  writs  of  attachment  in  the  order  in  which  the 
suits  are  instituted,  but  is  not  bound  to  withhold  the  second 
writ  because  the  plaintiff  in  the  first  suit  fails  to  call  for  it  in 
time.  When  there  are  sev^eral  demanded  writs  ready  for 
issue,  he  has  no  right  to  refuse  delivery  to  the  first  applicant, 
who  may  not  have  instituted  the  first  of  the  attachment 
suits.     If  the  first  plaintiff  thus  loses  his  prioritj^,  he  must  at- 

Patterson  v.  Stephenson,  77  Mo.  329.  Lean,  65  Wis.   397;  Woodbridge  v. 

See  Hope  v.  Blair,  105  id.  85;  Whip-  Bank,  36  Fed.  97. 

pie  V.  Sheldon,  63  Vt.  197;  Cross  v.  -State  v.  Duncan  (Neb.),  56  N.  W. 

Fonibey,  54  Ark.  179.  216. 

iNethercutt    v.    Herron  (Ky.),   8  3  Danaher  r.  Prentiss,  22  Wis.  311 ; 

S.   W.    13;    Riordan  v.   Britton,  69  Brickey  v.    Davis,  9  III.   App.   363; 

Tex.    198;   Bank    of    Commerce    v.  §^5  814,  815. 
Payne,  86  Ky.  446 ;  Saunders  v.  Mc- 


550  creditor's  contests  with  third  parties.        [§  809. 

tribute  the  loss  to  his  own  ladies.  Any  partiality  shown  by 
the  clerk  to  a  subsequent  plaintiff  would  render  such  officer 
liable  for  whatever  loss  might  ensue.  If  he  issues  a  subse- 
quently demanded  writ  before  that  first  demanded  and  thus 
enables  a  second  or  later  suing  creditor  to  gain  the  first  posi- 
tion in  rank  of  lien,  there  would  be  a  violation  of  official  obli- 
gation on  the  part  of  the  clerk,  and  liability  in  damage  to  the 
party  injured.  No  injury  would  be  inflicted,  however,  what- 
ever the  animus  of  the  clerk,  if  the  first  ordered  writ  should 
be  ready  when  called  for,  and  should  be  delivered  to  the  first 
plaintiff,  notwithstanding  the  second  had  been  first  prepared, 
if  the  second  plaintiff  had  not  received  it.  If  both  be  prepared 
simultaneously  by  different  deputies,  there  would  seem  to  be 
no  necessary  partiality  or  collusion,  even  though  the  second 
plaintiff  get  his  writ  first  by  calling  first.  In  such  case  the 
clerk  cannot  be  charged  with  unfaithfulness  or  neglect  of  duty> 
unless  there  are  other  circumstances  to  show  a  design  to  aid 
one  of  the  attaching  creditors  to  the  injury  of  another,  which, 
coupled  with  the  wrongful  act,  would  constitute  malfeasance. 
But  such  malfeasance  must  result  in  actual  loss  to  the  litigant 
whom  the  clerk  meant  to  delay,  before  an  action  would  lie 
against  such  officer;  at  least  before  an  action  would  lie  for 
anything  more  than  nominal  damages.^ 

§809.  Ranli. —  Garnishments  by  more  than  one  creditor, 
competing  with  each  other,  take  precedence  in  the  order  of 
service,  as  observed  before.^  This  depends,  of  course,  upon 
the  maintenance  of  the  attachments  and  their  perfection  by 
judgment  and  levy.  One  who  abandons  his  attachment, 
though  by  a  compromise  with  the  defendant  by  which  it  is 
agreed  between  them  that  he  shall  take  the  property  attached, 
and  who  thereupon  dismisses  his  action,  or  who  dismisses  it 
for  any  reason,  loses  his  rank,  and  the  junior  attachers  take 
the  property  in  due  order  —  the  first  of  the  juniors  being  satis- 
fied, the  second  succeeding,  and  so  on.^ 

Where  there  is  a  limit  fixed  by  statute  to  the  duration  of 
the  lien  of  an  attachment  upon  mesne  process  (as,  for  instance, 

1  Lick  V.  Madden,  36  Cal.  208.  Wilder  v.  Weatherhead,  32  Vt.  765; 

2  Johnson  v.  Griffith,  2  Cr.  C.  C.     Bergman  v.  Sells,  39  Ark.  97. 

199;  Moore  v.  Holt,  10  Gratt.  284;  3  CoIe  tJ.  Wooster,  2  Ct.  203 ;  Bran- 
Erskine  v.    Staley,    12    Leigh,    406;     don  Iron  Co.  v.  Gleason,  24  Vt.  228. 


§§  810,  811.]  PRIOKITY    OF    GARNISHMENT.  551 

that  it  shall  continue  only  thirty  days  after  judgment),  the 
first  lien  might  expire  with  the  period,  and  the  second  thus 
gain  the  first  rank.  If  there  is  a  final  judgment  for  the  de- 
fendant in  the  first  attachment  suit,  the  lien  of  the  second, 
sustained  by  judgment,  would  gain  the  first  rank.  Though 
the  decree  against  the  defendant  be  appealable,  yet,  if  not 
appealed  in  due  time,  the  lien  would  be  as  effectual  as  if  there 
had  been  a  confirmation  of  the  judgment  b}^  the  appellate 
court.  The  law  must  be  strictly  construed  when  liens  are 
being  marshaled ;  the  first  attacher  who  has  legally  lost  his 
rank  cannot  regain  it  in  equity.^ 

§  810,  Lien. —  Priority  of  garnishment  when  obtained,  like 
priority  of  attachment  in  the  hands  of  the  defendant  himself, 
must  be  followed  up  by  judgment  maturing  the  lien  to  pre- 
serve it  from  supercedure  in  rank  by  later  garnishments. 
Originally  all  the  creditors  are  ordinary  ones,  lienless,  stand- 
ing on  equal  grounds.  The  only  advantage  one  has  over 
another  in  a  contest  grows  out  of  the  superior  vigilance  and 
diligence  of  him  who  makes  the  earlier  garnishment.  The 
highest  rank  among  the  immature  liens  created  by  the  gar- 
nishments, belonging  to  the  first  interrogator  who  has  had 
the  garnishee  served,  may  be  lost  by  any  act  of  his  that 
would  dissolve  the  attachment  and  release  the  lien.-  The  lien, 
is  sometimes  said  to  be  dissolved  when  there  is  judgment  for 
defendant,  but  the  efi'ect  of  such  judgment  is  to  retroact  upon 
the  attachment  or  garnishment  so  as  to  make  it  nugatory 
from  the  beginning.  Instead  of  dissolving  a  lien,  it  makes 
the  fact  manifest  that  there  never  has  been  a  lien  in  the  sense 
of  a  right  thing  attached  to  the  amount  unjustly  or  illegally 
claimed,  or  claimed  under  circumstances  that  never  legally 
warranted  the  remedy  by  attachment. 

§  811.  Effect  of  judgment  confessed. —  When  there  is  judg- 
ment for  the  plaintiff  upon  the  confession  of  the  defendant,  is 
there  a  release  of  the  lien  so  far  as  junior  attachers  are  con- 
cerned? If  the  confession  of  judgment  is  before  the  return 
of  the  attachment  writ,  it  could  hardly  be  said  to  merge  any 
attachment  lien  into  a  judgment  lien.  Of  course,  the  judg- 
ment lien  would  be  none  the  worse  for  this  so  far  as  the  direct 

1  Suydam  v.  Huggeford,  23  Pick.  2  Suydam  v.  Huggeford,  23  Pick. 
46J.  465. 


552  ckeditob's  contests  with  third  pakties.        [§  812. 

relations  between  the  judgment  creditor  and  the  judgment 
debtor  are  concerned;  but  the  question  is,  would  such  judg- 
ment have  priority  in  execution  directed  against  goods  or 
debts  attached  or  subjected  to  garnishment  over  junior  judg- 
ments rendered  without  confession  and  pursuant  to  garnish- 
ment or  attachment,  and  for  the  perfection  of  the  liens? 
Certainly  the  first  plaintiff  could  not  retain  priority  of  lien 
by  compromising  with  the  defendant,  accepting  attached 
property  in  satisfaction  of  the  claim,  and  dismissing  his  suit; 
and  it  would  seem  that  a  confession  of  judgment  by  the  de- 
fendant, under  the  circumstances  suggested,  would  give  the 
plaintiff  no  better  position,  in  relation  to  competing  junior 
attachers,  than  such  compromise  would  give."^  As  a  general 
rule,  the  attaching  creditor,  having  his  right  to  create  a  lien 
by  the  operation  of  law  upon  given  circumstances,  must  rea- 
sonably follow  the  law;  for,  though  junior  competing  credit- 
ors are  not  competent  to  interfere  between  him  and  the 
defendant  for  the  purpose  of  pointing  out  unsubstantial  irreg- 
ularities, they  have  such  right  as  their  interest  gives  to  show 
that  the  first  attachment  has  lost  its  hold  by  the  failure  of 
the  senior  attacher  to  follow  the  law. 

§812.  JEffect  of  amendment. —  An  amendment  of  a  writ 
may  be  retroactive  upon  the  question  of  a  garnishee's  liabil- 
ity. Although  there  could  be  no  judgment  against  him  on 
an  answer  that  he  owes  the  firm  of  which  the  defendant  is  a 
member,  yet  if  afterwards  the  firm  is  made  the  party  defend- 
ant, the  garnishee  may  be  held  bound  under  such  answer.- 
Meanwhile,  however,  the  rights  of  other  persons  might  inter- 

iColeu  Wooster,  2  Ct.  203;  Mur-  161.  But  as  soon  as  the  writ  was 
I'ay  V.  Elrige,  2  Vt.  388;  Brandon  amended  by  joining  Bristol  as  de- 
Iron  Worlds  V.  Gleason,  24  id.  228;  fendant,  the  trustee  still  holding  the 
Hall  V.  Walbridge,  2  Ailfens,  215.  fund,     ...     no    rights    of  other 

2  Sullivan  v.  Langley,  128  Mass.  persons  having  intervened,  and  it 
287:  "The  first  service  upon  the  being  conceded  that  the  two  defend- 
trustee  of  a  vt'rit  in  which  Alder-  ants  comprised  the  firm  of  J.  F.  A. 
man,  but  no  partner  of  his,  was  &  Co.,  and  that  the  fund  belongs  to 
then  a  principal  defendant,  did  not,  them,  the  previous  attachment  be- 
indeed,  create  a  valid  attachment  of  came  valid,  and  the  trustee  was  at 
the  debt  due  from  the  trustee  to  the  once  chai'geable  upon  his  original 
partnership  of  J.  F.  Alderman  &  answer.  .  .  .  West  v.  Piatt,  1115 
Co.  Plowes  V.  Waltham,  18  Pick.  Mass.  308;  Terry  v.  Sisson,  125  id. 
451 ;  Hoyt  v.  Robinson,  10  Gray,  371 ;  560  ;  Wright  v.  Herrick,  id.  154." 
Bulfinch  V.  Winchenbach,  3  Allen, 


§,^  813,   Sl-i.]  SIMULTANEOUS    ATTACiniENTS.  553 

vene;  writs  in  other  cases  might  reach  the  fund  or  debt  as 
that  of  the  firm,  and  the  retroaction  of  the  amendment  would 
be  inadequate  in  the  contest  between  the  writs  for  priority. 
The  attaching  creditor  who  first  garnishes  the  firm's  credit 
must  necessarily  outrank  him  who  does  so  later  by  a  reactory 
amendment;  for  the  reaction  cannot  make  the  attachment  as 
of  the  original  date  of  the  summons,  if  thereby  other  persons 
w^ould  be  injured. 

§  813.  Not  retroactive^  ivlien. —  Although  attachment  writs 
may  be  amended  under  certain  circumstances,  so  that  the 
change  has  a  retroactive  effect  when  no  interests  of  others  than 
the  parties  to  the  suit  are  thereby  affected,  yet  a  change  of 
circumstances  cannot  render  an  attachment  valid,  if  void  when 
executed.  The  validity  must  be  judged  by  the  facts  existing 
at  the  time  of  the  levy.^  If,  when  the  garnishee  is  summoned, 
the  state  of  facts  then  is  that  he  owes  the  defendant  but  is 
under  an  agreement  with  him  to  offset  the  debt  ag^ainst  an- 
other,  he  is  not  chargeable:  and  though  such  agreement 
should  afterwards  be  abrogated,  the  change  of  circumstances 
will  not  retroact  so  as  to  render  the  garnishee  chargeable  on 
his  first  summons.^  He  might  be  reached  by  a  second  sum- 
mons and  a  second  declaration  to  him  by  the  officer  that  the 
property  and  credits  of  the  defendant  are  attached  in  the  gar- 
nishee's hands,  followed  by  interrogatories;  or,  a  junior  at- 
tacher  might  summon  such  garnishee,  disregarding  the  prior 
attempt  to  hold  him,  and  successfully  attach  in  his  bands  after 
the  agreement  had  been  abrogated.  The  first  attempt,  at  a 
time  when  the  garnishee  was  not  chargeable,  could  have  no 
effect  whatever.  The  second,  when  the  garnishee  had  become 
chargeable,  would  really  be  the  first  attachment,  and  there- 
fore would  create  the  only  lien. 

V.  Simultaneous  Attachments. 

§  814.  Equal  lieus. —  Simultaneous  service  of  several  attach- 
ments creates  equal  liens.^  Equal  liens  share  equally  in  dis- 
tribution—  not  proportionately  to  the  amounts  claimed.     In 

1  Hancock  v.  Colyer,  99  Mass.  187;  3  Wilson  v.  Blake,  53  Vt.  305;  Stef- 

Meacham  r.  McCorbitt,  2  Met.  352.  fens  v.    Wanboeker,    17   S.   C.  475; 

2 O'Brien  v.  Collins  &  Trustee,  124  Pond  v.  Griffin.  1  Ala.  678;  Sewell  v. 

Mass.  98.  Savage,  1  B.  Men.  200;  Burkhardt  v. 


55-i  creditor's  contests  with  third  parties.        [§  815. 

such  case  all  of  the  attachments  are  of  equal  force,  and  no 
just  rule  can  give  one  the  advantage  over  another.  (The  rule 
that  the  law  disregards  fractions  of  a  day  is  inoperative  when 
it  would  Avork  injustice.^)  Two  persons  attaching  simulta- 
neously should  each  be  benefited  pro  rata  according  to  the 
amount  of  his  claim,  or  should  one  take  half  the  proceeds  of 
the  property  attached  and  the  other  the  remaining  half  ?  The 
latter  is  the  rule.  The  creditor  claiming  a  thousand  dollars, 
competing  with  another  claiming  five  hundred,  would  get  no 
more  than  half  the  proceeds  should  the3'"  amount  to  one  thou- 
sand dollars  or  less.  The  rule  is  the  same  as  if  there  were 
two  simultaneous  conveyances  of  land,  when  each  of  those 
to  whom  the  whole  is  thus  nominally  conveyed  would  take  a 
moiety .2  The  same  piece  of  land,  being  twice  devised  in  the 
same  will  to  two  different  persons,  goes  half  to  one  and  half 
to  the  other.  Though  Lord  Coke  thought  the  last  devise 
should  prevail  and  carry  the  whole,  the  rule  has  been  settled 
that  either  takes  a  moiet}'.  Competing  simultaneous  attach- 
ments are  somewhat  analogous  to  such  conveyances  and  de- 
vises. One's  right  is  met  by  another's  equal  right,  and  there 
is  no  more  equitable  rule  than  to  divide  the  proceeds  into 
aliquot  parts  and  distribute  accordingly.^ 

§  815.  Division  of  liroceeds. —  Each  of  several  judgment 
creditors  having  complete  attachment  liens  of  equal  rank  is 
entitled  to  have  his  judgment  wholly  satisfied  out  of  the  at- 
tached property,  could  he  have  it  without  injury  to  his  com- 
petitors; but  as  he  cannot,  the  equitable  rule  is  that  the  pro- 
ceeds must  be  divided  as  above  indicated.  The  attachers  hold 
per  my  et  per  tout}  Judgment  liens  were  held  equal  in  rank, 
rendered  in  cases  in  which  trustee  writs  had  been  simulta- 
neously delivered  and  attachments  simultaneously  made;  and 
an  aliquot  part  was  accorded  to  each  judgment  creditor.^  And 

McCIellan,  15  Abb.  Pr.  243;  Gates  V.  3  Davis    v.    Davis,    2    Cush.    Ill; 

Buahnell,  9  Ct.  530;  Fitch  v.  Waite,  Shrove  v.  Dow,  13  Mass.  529;  Camp- 

5  id.  117;  TafEts  v.  Manlove,  14  Cal.  bell  v.  Ruger,  1  Cow.  215;  Thurston 

47;  McCobb  v.  Tyler,  2  Cr.  C.  C.  199;  v.  Huntington,  17  N.  H.  438;  Nutter 

Grigsley  v.  Love,  id.  413;  Howard  v.  v.  Connett,  3  B.  Mon.  199;  Kennon 

Clark,  43  Mo.  344 ;  §  807.  v.  Ficklin,  6  id.  414 ;  Clay  v.  Scott,  7 

1  Neale  v.  Ultz,  75  Va.  480.  id.  554. 

2 Coke    Litt.    21;    id.    112,    note;  4  sigourney  v.  Eton,   14  Pick.  415. 

Plowd.  Com.  541 ;  Countess  of  Rut-  ^  Rockwood  v.  Varnum,   17  Pick, 

land's  Case,  5  Coke,  25.  289,  292. 


§  SI 6.]  CLAIMANTS.  555 

if  two  attachments  are  simultaneous,  one  cannot  acquire  pri- 
ority over  the  other,  with  respect  to  the  judgment  lien,  by  the 
prior  issue  of  execution  against  the  whole  of  the  attached 
property,  even  though  the  other  should  direct  execution 
against  a  moiety  only  and  at  a  later  date.^ 

This  rule  of  distribution  is  not  without  exceptions.  If  the 
aliquot  part  falling  to  one  of  several  attachers  is  greater  than 
the  amount  of  judgment  obtained  by  hira,  the  surplus  is  di- 
visible among  the  rest.  A  ^^ro  rata  division  of  the  pro- 
ceeds,—  the  rate  having  reference  to  the  amount  which  each 
attacher  has  recovered, —  is  the  practice  in  some  states.^ 

VI.  Claimants. 

§  S16.  The  owner  of  attached  property  may  claim  it  in  the 
attachment  case  and  take  action  to  have  the  levy  set  aside.^ 
The  contest  is  with  the  plaintiff  whose  interest  it  is  to  support 
the  title  of  the  defendant.* 

It  is  the  plaintiff  whom  the  intervenor  making  third  oppo- 
sition must  cite;  not  necessarily  the  attachment  defendant.' 
It  is  for  the  intervenor  to  see  that  the  mtervention  is  put  at 
issue  and  brought  to  trial.® 

It  is  the  claimant's  title  which  is  put  at  issue  b}''  his  assertion 
of  it  under  an  interplea.  The  title  of  other  third  persons,  or  of 
the  defendant  (especially  if  absent),  is  not  affected  by  the  ruling 
upon  the  plea.  As  between  the  intervenor  and  the  attaching 
creditor,  the  decision  is  conclusive  that  the  thing  in  dispute 
is  or  is  not  the  property  of  the  intervening  claimant.^  As 
between  these  two  parties,  the  issue  is  sometimes  such  that  the 
intervenor  has  the  affirmative,  and  sometimes  the  contrary.    If 

1  Durant  v.  Johnson,  19  Pick.  544.  Part  II,  1294.     In  Mississippi,  when 

2  Porter  v.  Earthnian,  4  Yerg.  358;  property  is  attached  on  mesne  pro- 
Love  u  Harper,  4  Humph.  113;  Hiil  cess,  which  is  claimed  by  a  third 
V.  Child,  3  Dev.  265 ;  Freeman  r.  person,  the  trial  of  the  title  is  post- 
Grist,  1  Dev.  &  Batt.  217.  poned  till  after  judgment  against  the 

3  Xojes  V.  Canada,  80  Fed.  665;  attachment  defendant.  Mandel  v. 
Simonds  v.  Pearce,  31  id.  665.  McClure,  22  Miss.  11;  Maury  v.  Rob- 

•«  Boaz  V.  Schneider,  69  Tex.  128 ;  erts,  27  id.  225. 

Brown     v.     Lessing,     70    id.     544;  ^  Yale  r.  Hoopes,  12  La.  Ann.  460. 

Wichita,  etc.  v.  Records  (Kan.),  19  ''  Hershy  v.   Clarksville  Institute, 

P.  346.  15  Ark.  138. 

^Gerson  v.   Jamar,  30   La.  Ann., 


556       ckeditoe's  contests  with  third  parties.     r§§  S17,  818. 

he  claims  the  attached  property,  he  must  plead  in  writing, 
present  matter  for  issue,  and  it  must  be  sufficient  to  support  a 
verdict  or  judgment;^  and  it  has  been  held  that  his  claim 
must  be  taken  as  true  if  it  is  not  answered.- 

§  817.  The  claimant  is  always  an.  actor,  and  he  must  file  his 
claim  and  establish  it,  in  garnishment  proceedings  as  well  as 
in  direct  attachment.  In  relation  to  him,  the  original  plaintiff 
(attaching  creditor)  is  really  a  defendant  as  well  as  the  attach- 
ment debtor  is  such;'  and  he  should  join  issue.* 

Ordinarily  an  intervening  claimant  cannot  bond  attached 
property  and  thus  get  possession  of  it.^  When  he  can  do  so, 
his  bond  to  return  the  goods  to  the  sheriff  on  demand  is  a  con- 
tract of  bailment.  If  the  goods  prove  to  belong  to  some  per- 
son other  than  the  attachment  debtor,  the  bond  is  not  collect- 
ible.^ The  ckiimant  who  gives  a  delivery  bond  and  gets 
possession  of  attached  property  is  estopped  from  setting  up 
the  incapacity  of  the  deputy  who  took  the  bond  from  him.'' 

§818.  Burden  of  i)roof. —  The  claimant  has  the  burden  of 
proof  to  sustam  his  allegations.^  He  has  been  allowed  to 
prove  declarations  of  the  defendant  tending  to  show  that  he 
did  not  own  the  attached  property.^  If  he  attacks  the  grounds 
of  the  plaintiff's  affidavit,  it  is  held  that  the  burden  is  on  him 
to  prove  them  false.^"     He  has  been  denied  when  offering  to 

1  Neal  V.  Newland,  4  Ark.  459.  SLagomarcino  v.  Quattrochi  (la.), 
When  an  intervener  charged  that  56  N.  W.  484 ;  Haynes  v.  Thompson, 
the  attachment  defendant  had  "no  80  Me.  125;  Moors  v.  Goddard,  147 
leviable  interest,"  it  v^as  held  to  Mass.  287;  Parlin  u.  Spencer  (Kan.), 
mean  no  freehold  estate  in  the  land  33  P.  383 ;  Swiggett.  v.  Dodson,  38 
attached.  Ducker  v.  Ware,  145  111.  Kan.  703 ;  State  v.  Spikes,  33  Ark. 
658.  801;  McCarthy  v.  Grace,    23   Minn. 

2  Williams  v.  Vanmetre,  19111.  293.  182;  Wallace  v.  Robeson,  100  N.  C. 

3  Smith  V.  Barclay  (Minn.),  55  N.  207;  Woolner  v.  Lehman,  85  Ala. 
W.  822;  McMahon  v.  Merrick,  33  274:  Wilson  v.  Hill,  17  Nev.  401; 
Minn.  262;  Shoe  Co.  v.  Ladd,  32  id.  Harper  v.  Commercial,  etc.  Bank, 
381;  Donnelly  V.  O'Connor,  22  id.  309.  15  La.   Ann.  136;  Balder  v.  Cohen, 

4  Rosewater  v.  Clothing  Co.  (Ark.),  42  Mo.  App.  97 ;  Teichman  Com.  Co, 
25  S.  W.  73;  Mansf.  Dig.,  g§  356,  v.  Bank,  27  id.  676.  See  Blarks  v. 
358,  5020.  Anderson,   1  Colo.  App.  1 ;  Sanders 

5Kinnear  v.  Brunell,  17  Colo.  11.  v.  Page,  11  Colo.  518. 

6  Mason  v.  Aldrich,  36  Minn.  283.  9  Wright  v.  Smith,  66  Ala.  514. 

"Spears  V.  Robinson  (Miss.),  15  So.  WMcCormick,  etc.  v.   CoUiver,   75 

111;  State  ?'.  Depsedor,  65  Miss.  26 ;  la.  559. 
Forbes  v.  Navra,  63  id.  1. 


§<  819,  820.]  CLAIMANTS.  557 

prove  collusion  between  the  plaintiff  and  defendant  and  to 
show  that  the  plaintiff's  demand  was  fictitious.^  AVhere  such 
colUision  may  be  charged,  the  evidence  to  support  it  should 
show  that  the  plaintiff  was  helped  b}'^  the  collusive  act  or 
agreement;  otherwise  it  would  be  insufficient.^ 

The  plaintiff,  in  Missouri,  may  show  an  interpleader's  claim 
to  attached  property  to  be  fraudulent  under  a  general  denial 
of  the  plea,*  though  the  rule  is  otherwise  in  equity.* 

g  819.  JRcady  for  trial. —  The  intervenor  must  always  be 
ready  for  trial,  it  is  said;  but  if  he  has  good  reason  for  not 
being  ready  with  his  evidence  upon  the  spur  of  the  moment, 
his  rights  and  interests  ought  not  to  be  sacrificed  or  put  in 
jeopardy  in  obedience  to  such  rule.  However,  it  is  a  common 
remark  of  the  courts  that  an  intervenor  must  be  always  ready, 
and  cannot  be  permitted  to  retard  the  principal  suit.^  But  he 
may  have  sale  postponed  till  his  claim  has  been  heard.*^ 

§820.  What  garnisUee  liolds. —  The  property  or  funds  in 
the  hands  of  a  garnishee  may  be  the  proper  object  of  con- 
tention between  the  attachingcreditor  and  a  claimant  of  such 
property  or  funds.  But  the  claimant  has  no  right  to  show 
that  the  garnishee  has  nothing,  since  he  is  admitted  as  a  party 
in  the  case  to  establish  his  claim  to  what  is  attached  —  not  to 
show  that  nothing  is  attached.'^ 

In  Maryland,  under  the  act  of  187G,  one  who  has  had  prop- 
erty taken  from  him  as  that  of  the  defendant  may  intervene, 
bond  the  property  in  double  the  amount,  and  thus  discharge 

1  Desmond  v.  Levy  (Miss.),  12  So.  6  Rarechide  u.  Enterprise,  etc.  Co., 

481.  42  La.  Ann.  1195. 

2RawJins  v.  Pratt  (La.  Ann.),  12  7  ciark  r.  Gardner  &  Trustee,  123 

So.   197.     See  Goodbar  v.  Bank,  78  Mass.  358,  citing  Boylen  v.  Young, 

Tex.  461;  Meinhard  v.  Youngblood  6  Allen,  582;  Peck  v.  Stratton,  118 

(S.  C),  19  S.  E.  675.  Mass.  406.     The  case  turned  some- 

^FlrstN.  Bank  U.Kansas  City  Lime  what  upon  Massachusetts   statutes, 

Co.,   43  Mo.   App.   561;  Springer  v.  but  the   principle   seems   good  any- 

Kleinsorge,  83  Mo.  152,  156;  Fox  v.  where.     It  is  said  in  the  decision: 

Webster,  46  id.   181;    Greenway  v.  "  Evidence  that  there  were  no  goods, 

James,  34  id.  326;  Edgellu.  Sigerson,  effects  or  credits  of  the  defendants 

20  id.  494.  in  the  hands  of  the  trustee  at  the 

4  Reed  v.  Bolt,  100  Mo.  62;  Smith  time  of  the  service  of  the  writ  upon 
V.  Sims,  77  id.  269.  luui  would  in  effect  prove  the  claim- 

5  Richards  v.  Bestor,  90  Ala.  352;  ant  out  of  court." 
Gaines  v.  Page,  15  La.  Ann.  108. 


55S  creditor's  contests  with  third  parties.        [§  821. 

the  attachment.  He  may  put  both  the  title  of  the  propert}'  and 
his  claim  for  damages  at  issue  under  that  act.^  "Whether  he 
is  restricted  to  the  remedy  by  intervention  under  this  law, 
when  notified,  is  questioned  by  the  supreme  court  of  that 
state.^  Ordinarily,  intervention  is  optional.^  Sometimes  the 
attaching  creditor  may  cause  a  claimant  to  be  made  a  party; 
as,  in  Maine,  when  the  trustee  or  garnishee  has  disclosed  that 
some  third  person  claims  the  fund  or  property  sought  to  be 
attached.* 

The  interpleader,  whose  issue  involves  only  his  own  title  to 
the  property  attached,  has  no  interest  in  the  case  if  the  prop- 
erty is  not  his.  He  therefore  cannot,  under  such  claim,  attack 
any  of  the  plaintiff's  previous  proceedings  in  the  case  on  the 
ground  of  their  irregularity.*  The  issue  as  to  title  cannot  bo 
tried  on  rule  in  vacation.® 

§821.  Claimant's  motion  to  vacate  attacliment. —  "While  it 
is  no  concern  of  the  interveaor  whether  the  attachment  was 
regularly  made  or  not,  in  case  the  property  is  not  his  but  the 
defendant's,  it  is  his  concern  if  he  is  really  the  owner;  and  he 
may  move  to  vacate  it  on  grounds  proper  for  him,  as  the 
claimant  of  ownership,  to  assert.''  Obvioush",  he  must  have 
interest  in  the  dissolution  before  he  can  move  to  dissolve.^ 
"Whether  his  interest  is  confined  to  personal  property,^ or  ma}'' 
be  presented  when  his  realty  is  involv^ed,^"  it  must  be  such  that 
he  would  be  injuriously  affected  by  the  perfection  of  the  at- 
tachment in  order  to  entitle  him  to  make  the  motion  for  dis- 
solution when  he  is  a  mere  intervenor  in  the  cause. 

After  having  been  adjudged  the  owner  of  the  attached  prop- 
erty, the  intervenor  may  recover  damages  by  suit  against  the 
attacher  for  the  wrongful  levy.'^     If  the  attached  property 

1  Turner  v.  Lytle,  59  Md.  199.  32  P.  635;  Long  v.  Murphy,  27  Kan. 

2  Id.  381.     And  such  motion  is  not  incon- 

3  Richardson  v.  Hall,  21  Md.  399.  sistent  with  his  action  of  replevin 
*  Look  V.  Brackett,  74  Me.  347.  pending  at  the  same  time.  Watson 
5  Pace  V.  Lee,  49  Ala.  571 ;  Moresi  v.  Jackson,  24  Kan.  442;  White  Crow 

V.  Swift,  15  Nev.  215;  Davis  v.  Fogg,  v.  White  Wing,  3  id.  276. 

58  N.  H.  159.  8  Long  v.  Murphy,  27  Kan.  375. 

e  New   Orleans  v.    Morris,  29   La,  ^  Gordon  v.  McCurdy,  26  Mo.  304. 

Ann.  241.  10  Bennett  v.  Wolverton,  24  Kan.  284 

■^Hines  v.   Kimball,   47   Ga.    587;  ^  Frank  v.   Chaffee,   34  La.  Ann. 

Kendall  Shoe  Co.  v.  August  (Kan.),  1203. 


§§  822,  823.]  CLAIMANTS.  559 

has  been  sold,  the  measure  of  damages  is  its  value  at  the  time 
of  the  levy  and  interest  thereon.^ 

One  who  is  the  owner  of  property  attached  as  that  of  an- 
other may  either  intervene  in  the  suit  to  claim  his  property, 
or  he  may  sue  the  sheriff  or  the  purchaser  without  making 
himself  a  party  to  the  attachment  suit.-  "When  he  has  been 
adjudged  the  owner,  he  has  his  action  against  the  sheriff  lor 
wrongful  seizure.*  The  judgment  upon  the  intervention 
should  decide  upon  his  right  to  the  property  claimed;*  it 
should  not  be  a  money  judgment.^ 

§  822:  Possessor. —  One  to' whom  goods  have  been  construc- 
tively delivered  (as  by  bill  of  lading)  may  successfully  inter- 
vene in  the  suit  of  a  subsequent  attacher."  He  has  an  interest 
to  maintain  without  which  he  could  not  appear  by  interplea 
to  recover  the  property  or  damages.'  The  garnishor  of  a 
debt  cannot  intervene  and  claim  it  as  due  to  himself.^  It  is 
held  in  Delaware  that  no  one  can  intervene  without  statute 
authorization.^ 

§823.  Hecovery. —  The  owner  may  replevy  his  property 
when  it  is  attached,  if  it  was  taken  from  his  possession.^"  But 
when  interplea  has  been  filed  and  property  claimed,  if  the 
judgment  is  averse  to  the  plea,  the  intervenor  cannot  after- 
wards maintain  replevin  against  the  ofHcer.^^ 

If  one  intervenes  and  claims  as  due  to  himself  a  credit 
attached  in  the  hands  of  a  garnishee,  he  cannot  recover  if 
the  attaching  creditor  abandons  the  garnishment.^^  The  dis- 
missal of  an  attachment  or  garnishment  leaves  the  inter- 
venor to  proceed  in  a  direct  action. ^^     It  is  held  that  if  the 

1  Brasher  v.   Holtz,  12  Colo.  201 ;        6  Adoue  v.  Seeligson,  54  Tex.  593. 
Cornforth  v.  Maguire,  id.  432.  '^  Mayberry  v.  Steagall,  51  Tex.  351. 

2Rodrigues    v.   Trevino,   54    Tex.        ^^  bar uathy  u.  Whitehead,  69  Mo. 

198.  28. 

3  Clark  v.  Brott,  71  Mo.  473.  9  Pennsylvania  Steel  Co.  v.  New 

^Hevvson  v.  Tootle,  72  Mo.  632.  Jersey  Southern  R.  R.  Co.,  4  Hous- 

5  Rindskoff  v.  Rogers,  34  Mo.  App.  ton,  572. 
126.     But  when   summarily  trying       i^Lgwry  V.   Kinsej%   26   111.    App. 

title  to  goods,  the  court  may  take  309. 

evidence  of  their  value   after  hav-       n  Bray  v,  Saaman,  18  Neb.  519. 
ing  adjudged  them  to  the  claimant.       I'^^Peck  v.  Stratton,  118  Mass.  406. 
Schlinter  v.  Jacobs,  10  Colo.  449.   See      i^  Meyers  v.  Berotte,  41  La.  Ann. 

Martin  v.  Hartnett  (Tex.),  26  S.  W.  745. 
915. 


5G0       creditor's  contests  with  third  parties.     [§§  82i,  825. 

plaintiff  dismiss  his  suit  before  sale,  he  incurs  no  liability  to 
laborers  who  have  filed  notices  of  claims  against  the  defend- 
ant.i 

§  824.  Malting  imrties. —  In  Alabama,  third  persons,  shown 
by  the  answer  to  be  interested,  may  be  brought  into  court 
and  made  parties;  ^  but  it  is  held  in  Missouri  that  courts  have 
no  right  to  order  non-residents  to  come  into  an  attachment 
suit  and  litigate  thoir  rights  to  an  attached  fund.*  In  Massa- 
chusetts it  was  held  that  the  conflicting  rights  of  two  distinct, 
adverse  claimants  of  funds  in  the  hands  of  a  trustee  cannot  be 
settled  by  proceedings  under  the  trustee  process.'*  The  prac- 
tice in  ISTew  York  seems  to  be  different.^ 

A  court  ordered  an  administrator  to  be  made  a  party  to  a 
suit  to  reach  funds  in  his  hands  and  gave  judgment  against 
him,  though  he  had  not  been  notified.  The  judgment  was 
void.'' 

The  owner  of  an  undivided  interest  in  a  chattel,  attached 
in  a  suit  against  the  owner  of  a  like  interest  in  it,  may  claim 
his  right  without  making  the  other  owner  a  party.'^  When 
such  an  owner,  after  being  cast,  moved  a  new  trial,  and  filed 
the  affidavit  of  another  person  claiming  a  half  interest  in  the 
goods  attached  and  averring  belief  that  the  mover  did  not 
know  of  this  claim  before  the  trial,  the  motion  was  refused.'' 

§  825.  It  has  been  held  that  the  surety  on  the  dissolution 
bond  of  the  defendant  may  become  claimant;®  and  that  a 
person,  interested  before  he  was  summoned  by  the  plaintiff  as 
garnishee,  is  not  precluded  from  intervening  to  protect  his 
interest  by  reason  of  the  summons.^" 

An  intervener  on  a  trust  deed,  paid  before  the  attachment 
judgment,  can  have  costs  which  accrued  before  payment;  and 
the  pa3-ment  may  be  proved  under  the  issue." 

1  Wells  V.   Columbia  N.   Bank,  6  6  Barnes  v.  Hays,  129  Pa.  St.  554. 

Wash.  621;  Hill's  Code,  §  3124.  7  Hamburg  v.  Wood,  66  Tex.  16S, 

2Molton    V.    Escott,    50  Ala.    77;  f*Choate  v.    Mcllhenny,    71    Tex. 

Boyd  V.   Cobbs,  id.  82;  Rowland  v.  119. 

Plummer,  id.  182.  9Redwitz  v.  Waggaman,   33  La. 

3  Sheedy  v.  Second  Nat.  Bank,  63  Ann.  26. 

Mo.  17.  ^^  Crone  v.  Braun,  23  Minn.  239. 

4  Peck  V.  Stratton,  118  Mass.  406.       ii  Helm  v.  Gray,  59  Miss.  54. 

5  Kelly  V.  Whiting,  51  How.  Pr. 
201. 


§§  826,  82 T.J       coMPE'iiTioN  with  mortgagees.  561 

§826.  Jurisdiction. —  It  has  been  held  that  an  intervener, 
"who  is  a  citizen  of  a  state  other  than  that  where  the  suit  is 
pending  in  which  he  intervenes,  may  have  the  cause  removed 
to  the  federal  court.^ 

Jurisdiction  of  the  question  between  the  interpleader  and 
tlie  plaintiff  depends  upon  the  validity  of  the  attachment.  If, 
for  instance,  there  is  no  legal  service  of  the  writ,  there  is 
no  suit  between  the  parties  to  the  interplea  for  want  of  juris- 
diction.- The  record  is  before  the  court  and  need  not  be 
offered  in  evidence.^ 

An  intervener  may  claim  his  own  property  attached  in  a 
justice's  court,  though  it  exceeds  in  value  the  amount  over 
which  the  justice  has  jurisdiction.*  A  judgment  in  favor  of 
the  attaching  creditor  against  a  claimant  should  not  be  for 
the  property  attached.  It  ma}^  be  for  the  sum  claimed  and 
damages.* 

YII.  Competition  with  Mortgagees. 

§  827.  Notice  of  unrecorded  mortgage. —  A  creditor  who  has 
notice  or  knowledge  of  the  fact  that  certain  property  has  been 
mortgaged  cannot  attach  it  so  as  to  gain  priority  over  the 
mortgagee,  even  though  his  levy  should  precede  the  recording 
of  the  mortgage.  The  rule  is  that  he  is  in  no  better  position 
than  a  purchaser  with  notice  would  be;  and  certainly  such  a 
purchaser  cannot  defeat  an  unrecorded  mortgage.  It  is  against 
conscience  —  it  is  fraud  in  a  purchaser,  knowing  of  the  mort- 
gage, to  collude  with  the  mortgagor  in  an  attempt  to  do 
wrong  to  the  mortgagee.  It  may  be  said  that  fraud  is  the 
reason  for  the  rule  with  respect  to  such  purchasers,  but  that 
that  reason  will  not  hold  good  with  respect  to  an  attaching 
creditor  who  has  notice  of  the  existence  of  the  unrecorded 

iGilman  v.  Wheelock,  10  Bissell,  ij.  Jacobs,  10  id.  451;  Mills  u  Thomp- 

430.  son,  61  Mo.  415. 

2  Gibson  v.  Wilson,  5  Ark.  422.  5  Wetzel  v.  Simon  (Tex.  Civ.  App.), 

3  French  v.  Sale,  60  Miss.  516.  25  S.  W.  792.     See  Martin  v.   Hart- 
^Corthell   v.    Mead   (Colo.),   35  P.  nett  (Tex.).    25  S.  W.    1115;    Same 

741 ;  Kinner  r.  Flanders,  17  Colo.  13 ;  parties  (Tex.)  24  S.  W.  963 ;  Tex.  Rev. 
Cornforth  v.  Maguire,  12  id.  423;  Stat.,  art.  4843,  amended  in  1887. 
Brasher  v.  Holtz,  id.  203;  Schluter    Ten   per  cent,    damages,  in  Texas. 


Rev.  Stat.,  arts.  4840,  4841. 


86 


5G2  creditor's  contests  with  third  parties.        [§  828. 

mortgage.  It  ma}^  be  said  that  he  has  rights  as  well  as  the 
mortgagee;  that  both  may  be  creditors  seeking  to  secure  their 
just  dues,  and  that  his  vigilance  should  prevail  over  the  other's 
laches  in  the  race  for  priorit}'".  But  the  fact  is  that  between 
the  debtor  of  both,  and  the  mortgagee,  a  valid  lien  has  been 
created  upon  the  property;  it  is  not  a  lien  that  will  be  recog- 
nized by  the  world  at  large,  for  want  of  notice  by  recordation  ; 
but  it  is  one  that  the  notified  creditor,  who  subsequently  at- 
taches, is  bound  to  respect;  and,  although  he  may  attach 
without  collusion  with  the  debtor,  3xt  could  he  succeed  in  his 
attachment  he  would  knowingly  do  the  mortgagee  a  wrong; 
he  would  collect  his  debt  of  property  from  which  the  mort- 
gagee had  the  right  of  collecting  his;  he  would  thus  defraud 
the  mortgagee. 

§  828,  The  rule  seems  to  be  well  founded  that  an  attaching 
creditor  with  notice  of  an  unrecorded  mortgage  cannot  acquire 
a  higher  lien  than  that  which  the  mortgagee  has  previously 
acquired,  and  cannot  put  himself  in  a  better  position,  with 
respect  to  the  mortgage,  than  the  purchaser  with  notice  of 
such  unrecorded  mortgage  would  occupy.^  An  officer  notified 
of  a  mortgage,  when  about  to  attach  chattels,  is  bound  by  the 
notice.^  So,  if  notified  of  the  rights  of  persons  who  are  in 
possession  of  chattels.^ 

The  attaching  creditor,  however,  would  gain  rank  above 
the  mortgagee,  should  he  attach,  without  notice  and  in  gooti 
faith,  prior  to  the  recording  of  the  mortgage.*    And  so,  also, 

1  First  N.  Bank  v.  Carter  (Wash.),  Gilbert,  Freem.  (Miss.)  85;  Morton  r. 
33  P.  824;  Stewart  v.  Smith,  60  la.  Robards,  4  Dana,  258. 
275 ;  Mean  v.  New  York,  Housatouic  -  Stewart  v.  Smith,  60  la.  275. 
&  Northern  R.  R.  Co.,  45  Ct.  225;  3  Bacon  v.  Thompson,  60  la.  284. 
Sibley  r.  Leffingwell,  8  Allen,  584;  *  Cross  v.  Fombey,  54  Ark.  170; 
Lawrence  v.  Stratton,  6  Cush.  167;  Hanchett  v,  Ives,  133  111.  332;  Bacon 
Pomeroy  v.  Stevens,  11  Met.  244;  v.  Thompson,  60  la.  284,  overridiny 
Curtis  V.  Munday,  3  id.  405 ;  Coffin  Kessey  v.  McHenry,  54  la.  187  {see 
V.  Ray,  1  id.  212;  Priest  v.  Rice,  1  Crawford  v.  Nolan,  70  la.  97);  Hurt 
Pick.  164;  Prescott  v.  Heard,  10  v.  Redd,  64  Ala.  85;  Carter  v,  Cham- 
Mass.  60;  Tucker  v.  Tilton,  55  N.  H.  pion,  8Ct.  549;  Theall  v.  Disbrow,  39 
233;  Young  v.  Walker,  12  id.  507;  id.  318;  Bacon  v.  Thompson,  14  N.  W, 
Daggett  V.  McClintock,  56  Mich.  51;  312,  re-affirming  Boothby  v.  Brown. 
Daniels  v.  Sorrells,  9  Ala.  436 ;  Dixon  40  la.  104,  and  Hickok  v.  Buell,  51 
V.  Lacoste,  1  Smedes  &  M.  70;  Tay-  id.  655,  and  overruling  Kessej  v.  Mc- 
lor  V.  Echford,  11  id.  21;  Walker  v.  Henry,  54  la.  187.     See  Cummins  r. 


§  S29.]  COMPKTITIOX    WITH    MORTGAGEES.  563 

if  the  mortgage  is  recorded  but  with  an  inadequate  descrip- 
tion of  the  debt  to  be  secured  ^  —  not  sufficient  as  notice.  But 
if  the  description  is  not  misleading,  the  notice  will  be  suffi- 
cient.2 

If  knowledge  is  proved,  creditors  are  incapable  of  creating 
a  lien  in  their  own  favor  by  attachment  of  the  mortgaged 
property  of  such  character  as  to  outrank  the  mortgage.^  It 
has  been  thought  fraudulent  for  a  person,  with  notice,  to  at- 
tempt to  forestall  such  a  lien  while  the  lien-holder  is  using 
due  dilio-ence  to  get  it  recorded.^ 

,§  829.  Contemiilated  mortgage. —  If,  however,  the  lien  is  not 
3^et  good  between  the  contracting  parties,  the  creditor  wish- 
ing to  attach  is  not  bound  to  respect  the  intention  of  those 
parties.  They  may  intend  to  make  a  mortgage,  and  the  at- 
taching creditor  may  make  his  lien  first.  This  he  has  the 
right  to  do;  and  an  attachment  lien  created  under  such  cir- 
cumstances will  outrank  a  mortgage  subsequently  made  and 
duly  recorded,^  and  will  be  in  advance  of  an  assignment  not 
fully  consummated.^  A  chattel  mortgage  is  absolutely  void, 
in  Kansas,  if  not  deposited   with  the  register  of  deeds,  as 

Tovey,  39  id.  195 ;  Allen  v.  McCalla,  ^  Bramhall  v.  Flood,  41  Ct.  68.  The 

25  id.  464,  482;  McGarranr.  Haupt, 9  rule  is,  in   Connecticut,  that  "the 

id.  83;  Crawford  v.  Benton,  6  id.  476;  condition  of  a  mortgage  deed  must 

Miller  v.   Bryan,  81  id.  58;  Beamer  give  reasonable  notice  of  the  incum- 

V.  Freeman,  84  Cal.  554;  Brown  v.  brance  on  the   land   mortgaged  in 

Bank,  77  id.   544;  Merrill  v.   Hurl-  order  to  affect  the  creditors  of  the 

hurt,  63  id.  495;  Martin  v.  Thomp-  mortgagor  who  have  no  notice  of 

son,  id.  550;  Woods  V.  Bugby,  29  id.  the   real   incumbrance."     Pettibone 

471;  Gassnert?.  Patterson,  23  id.  300;  v.   Griswold,  4  Ct.  158;  Shepard  v. 

Farmers',  etc.  Co.  v.   Minn.  Works,  Shepard,    6    id.    37;    Stoughton   v. 

35  Minn.   546;  Mann  v.   Flower,  25  Pasco,  5  id.    144;  Hubbard   v.   Sav- 

id.   503;  Linderman  v.   Ingham,  36  age,  8  id.  215;  Booth  v.  Barnum,  9 

Ohio  St.  1;  Kilborne  v.  Fay,  29  id.  id.  286;  Sanford  v.  Wheeler,  13  id. 

264;  23  Am.  Rep.  741;  Hanes  v.  Tif-  165;  North  v.  Belden,  id.  376;  Hart 

fany,  25  Ohio  St.  549;  Crippen  v.  Ja-  v.  Chalker,  14  id.  77. 

cobson,    56   Mich.    386;    Bracket  v.  2  jjibbard  u.  Zenor,  82  la.  505;  also 

Harvey,  25   Hun,  502;  Southard  v.  same  title,  75  id.  471. 

Benner,   72   N.  Y.  427;   Granger  v.  »  Booth  v.  Gish,  75  la.  451. 

Adams,  90  Ind.  88.     An  attachment  *  Priest  v.  Rice,  1  Pick.  168. 

lien  on   personal  property  ranks  a  *  Pushing  v.    Hurd,    4   Pick.  253, 

deed  of  trust  notf  recorded   in   the  257;  Carter  v:  Champion,  8  Ct.  549. 

county  though  recorded  in  another  ^^Varden  r.  Adams,  15  Mass.  233; 

state.     Ballard    v.    Great  Western,  First  N.  Bank  v.  Ranch  Co.  (Wyo.), 

etc.  Co.  (W.  Va.),  19  S.  E.  510.  36  P.  821. 


oGi       creditor's  contests  with  third  parties.     [§|  830,  831. 

ao'ainst  an  attachment  of  the  chattels  in  a  suit  ao:ainst  the 
mortgagor,  unless  the  mortgagee  is  in  possession.^ 

§  830.  Presum])tion  of  notice. —  One  who  takes  a  mortgage 
on  attached  propert}'  is  presumed  to  have  notice  of  the  at- 
tachment;- and  he  takes  rank  below  the  attaching  creditor,* 
just  as  a  junior  attacher  does.  The  ownership  of  the  attached 
property  being  in  the  defendant  up  to  the  time  of  sale,  he  is 
perfectly  competent  to  mortgage  it,  or  to  create  any  other 
form  of  lien,  by  convention,  though  he  cannot,  by  any  such 
act,  dislodge  the  lien  previously  acquired  by  the  first  attacher. 
In  marshaling  the  liens  the}'  are  ranked  according  to  their 
date,  whether  they  are  attachment  liens,  mortgages  or  priv- 
ileges of  any  other  description,  except  such  as  have  priority 
of  law  because  of  their  nature  —  such  as  court  costs,  burial 
expenses,  and  the  like.  The  law  of  notice  applies  to  all, 
though  presumption  of  notice  varies  in  different  states,  AVhere 
recordation  of  attachment  liens  is  required  in  order  to  give 
notice  to  third  persons,  the  attacher  cannot  neglect  it  with 
impunity. 

§  831.  Releasing  part  of  attaclicd  ])ro2)erty. —  After  two 
tracts  of  land  have  been  attached,  one  of  them  may  be  re- 
leased and  the  other  held  to  secure  the  whole  amount  of  the 
claim  sued  upon.  If,  after  the  attachment  of  both,  the  debtor 
should  mortgage  one  tract,  and  that  tract  should  be  the  one 
upon  which  the  attachment  is  retained,  the  mortgagee  will 
not  be  entitled  to  priority  over  the  attaching  creditor  to  the 
amount  of  the  value  of  the  released  tract.     In  other  words, 

^Gen.   Stat,  of  Kan.,  §8903;  Par-  suit  and  file  their  claims,  all  to  be 

lin   V.    Spencer  (Kan.),    33   P.    363;  paid  pro  raia  if  allowed,  all  of  such 

Jewell    V.    Simpson,    88    Kan.    363;  junior    attachers  will    outrank  the 

Ramsey  v.  Glenn,  83  id.  271.    In  Ne-  mortgagee  whose  mortgage  is  later 

braska,  a  motion  by  a  mortgagor  to  than  the  original  attachment  though 

dissolve  chattel  attachment,    when  older  than  the  filing  of  the  junior 

denied,  is  not  reviewable  when  the  attachers'  claims.     Fee  ?'.  Moore,  74 

mortgage  has  been  foreclosed,  if  the  Ind.  319.     In  this  state  the  right  of 

mortgage  was  given  to  defraud  or  creditors  to  file    claims    terminates 

delay  creditors.  Darstu.  Levy  (Neb.),  with  the  final  judgment  and  order 

58  N.  W.  1130.  of  sale    of  the   attached   property. 

2  Fee  V.  Moore,  74  Ind.  319.  Cooper  v.   Metzger,  74  Ind.  544,  in 

3  Huxley  v.  Harrold,  63  Mo.  516.  construction  of  3  R.  S.  of  Ind.,  1870. 
In    Indiana,    where    creditors   may  p.  110. 

come  into  the  original  attachment 


§§  832,  833.]  COMPETITION   WITH   MORTGAGEES.  565 

the  attaching  creditor  did  not  give  up  his  right  to  make  all 
his  claim  out  of  one  tract  b}^  releasing  the  other  from  seizure.^ 

If  one  of  two  tracts  of  land,  or  one  of  two  articles  of  per- 
sonal property,  after  attachment,  has  been  released,  it  is  as 
though  it  had  never  been  attached;  so  that  a  mortgage  put 
upon  it  after  attachment,  or  a  second  lien  by  attachment  put 
upon  it  after  the  first  attachment,  would  hold  good.  In  a 
suit  to  have  certain  deeds  adjudged  to  be  mortgages  so  that 
the  land  (nominally  conveyed)  would  be  under  mortgage  lien, 
the  owner's  equitable  interest  was  held  not  attachable.- 

§  832.  Mortgage  to  secure  indorser. —  Though  a  mortgage 
of  personal  property  be  given  merel}'  to  secure  the  mortgagee 
against  liability  as  indorser  for  the  mortgagor,  the  lien  thus 
created  outranks  that  made  by  a  subsequent  attachment  of 
the  property  thus  mortgaged.  Though  the  note  indorsed  may 
not  have  matured,  and  the  lien  upon  the  mortgaged  property 
be  therefore  contingent,  yet  the  mortgagee  has  preference 
over  the  attaching  creditor.^  He  may  intervene  to  have  such 
preference  declared.* 

§  833.  Paging  mortgagee. —  The  creditor,  if  not  prevented 
by  the  mortgage  lien  from  attaching,  may  tender  to  the  mort- 
gagee the  amount  of  his  eventual  liability,  if  he  wishes  to  re- 
move the  prior  lien.  By  paying  or  tendering  that  amount, 
the  creditor  can  retain  his  attachment.^  The  mortgagee  is 
not  bound  to  sell  his  right.  The  officer  could  not  take  actual 
possession  of  the  property,  so  as  to  detain  it  under  the  attach- 
ment writ,  unless  the  creditor  should  pursue  this  course,  when 
the  mortgagee  has  the  custody  of  the  property.  The  latter 
would  be  the  lawful  custodian.^  If,  under  such  circumstances, 
the  property  should  be  attached  as  in  the  hands  of  a  third 
person,  and  the   mortgagee   garnished,  the  lien  so  created 

1  Johnson  v.  Bell,  58  N.  H.  395.  5  Rogers  v.  Abbott,  128  Mass.  103 ; 

2  Macauley  r.  Smith,  57  Hun,  585.  Bicknell   v.    Cleverly,    125    id.    164; 

3  Rogers  V.  Abbott,  128  Mass.  102.  Codaian  v.  Freeman,  3  Cush.    306; 
*  Langert  v.  Brown  (Wash.  T.),  13  Flanagan  v.  Cutler,    121  Mass.    96 ; 

P.  704.     A  preference  given  to  cred-  Goulding  v.  Hair.    133  id.  78;    Mc- 

itors  by  a  failing  creditor  executing  Donald  v.  Faulkner,  34  id.  154. 

mortgages  to  them  is  no  ground  for  '^See  Applewhite  v.   Mill   Co.,  49 

dissolving  an  attachment  laid  by  an  Ark.  279;  Merrill  v.  Denton,  73  Mich, 

unfavored  creditor.      Gregory  Gro-  034. 
eery  Co.  v.  Young  (Kan.),  36  P.  713. 


506  ckeditor's  contests  wrrn  third  parties.        [§  834. 

would  be  subsidiary  to  that  of  the  mortgage.  If  the  attaching 
creditor  would  gain  immediate  custod}'  of  the  thing  by  the 
officer  he  must  first  pay  the  mortgage,'  provided  the  mort- 
gagee will  agree.-  He  may  refuse  his  consent  and  prevent 
attachment,  or  claim  the  possession,  if  disturbed.  A  mort- 
gagee demanding  the  release  of  mortgaged  chattels  from 
attachment  should  describe  or  identify  them.^  Reference  to 
the  recorded  mortgage  containing  a  description  would  be  suf- 
ficient.* 

§  834.  Mortgage  iy  a  partner. —  Though  a  partner  may 
have  mortgaged  partnership  property  to  secure  his  individual 
creditor,  the  latter  will  not  have  a  higher  privilege  than  a 
creditor  of  the  firm  who  subsequently  attaches  the  same  prop- 
erty for  a  debt  of  the  firm.  Such  attachment  lien  will  out- 
rank the  mortgage,  as  it  will  also  outrank  a  prior  attachment 
against  the  same  property  in  a  suit  against  one  of  the  part- 
ners only  for  his  separate  debt.  But  a  mortgage  of  partner- 
ship property,  made  in  good  faith  by  an  insolvent  firm  to 
secure  a  debt  of  the  firm  and  also  one  of  a  member,  was  held 
good  against  a  subsequent  attachment  b}'^  a  creditor  of  the 
firm.^ 

A  mortgage  upon  propert}'-  of  a  partnership,  executed  by  a 
member  to  secure  his  separate  debt,  will  hold  good  if  the  other 
members  release  their  claims  upon  the  property  thus  mort- 
gaged. Though  at  the  time  such  mortgage  is  given  the  mort 
gagor  owns  only  his  share  of  the  surplus  after  partnership 
debts  are  paid,  and  although  the  release  of  the  claims  of  other 
partners  is  made  after  the  execution  of  the  mortgage,  yet  the 
act  purported  to  corer  the  entire  property,  and  the  release  by 
the  other  partners  is  a  ratification  of  the  act.^ 

There  is  a  condition  when  the  lien,  by  mortgage  or  by  at- 
tachment, depends  upon  a  settlement  of  the  partnership 
affairs:  there  is  none  when  the  lien  is  upon  partnership  prop- 
erty in  a  suit  against  the  partnership.     This  seems  to  be  the 

^Fox  V.  Cronan,  47  N.  J.  L.  493;  321;   Harding  v.    Coburn,    12   Met. 

54  Am.  Rep.  190.  (Mass.)  333,  340. 

2  Cochrane  v.  Rich,  143  Mass.  15.  5  Smith   v.   Smith  (la.),  54  N.  W. 

3  Woodward  v.    Ham,    140    Mass.  73,  reversing  (Ta.)  50  N.  W.  64. 

154;  Wing  v.  Bishop,  9  Gray,  223.  ^  go  held  substantially  in  Fargo  v. 

*  Moriarity  v.   Lovejoy,    23  Pick.     Ames,  45  la.  491. 


§§  835,  83G.]       coMrETiTiox  with  mortgagees.  567 

oiil}''  reason  why  an  attachment  lien  on  partnership  propert}', 
creiXted  by  a  suit  against  a  partnership,  should  be  allowed  to 
outrank  a  prior  lien  created  against  such  property  in  a  suit 
against  a  member  of  the  firm  for  liis  own  debt. 

g  835.  Lien  for  advances. —  One  who  has  a  lien  on  goods 
for  money  advanced  must  have  it  recorded  or  must  give  no- 
tice to  an  attaching  creditor  if  he  would  maintain  his  lien  as 
superior  to  that  of  such  creditor.^  If  the  attacher  knows  of 
the  existence  of  the  lien  for  advances,  or  that  of  a  vendor  for 
purchase-money,  it  is  immaterial  from  what  source  his  knowl- 
edge is  obtained;  he  is  bound  to  respect  it.^  Any  notice  of 
such  pre-existing  liens  answer  the  purposes  of  recording,  so 
far  as  the  attacher  is  concerned.^  The  burden  is  on  the  prior 
lien-holder  to  show  notice;*  and  it  has  been  thought  that  he 
must  show  that  the  notice  emanated  from  himself;^  but  if  the 
attacher  knew  of  the  fact  it  ought  not  to  matter  whence  his 
information  came.  Whenever  knowledo^e  is  brought  to  the 
court  that  attached  property  does  not  belong  to  the  debtor 
free  from  incumbrance,  but  that  there  are  liens  resting  upon 
it  older  than  the  attachment  lien,  there  should  be  no  disposi- 
tion made  of  it  which  would  pay  the  attaching  creditor  at  the 
cost  of  the  prior  lien-holders. 

If,  prior  to  attachment,  the  defendant  has  put  property  into 
the  hands  of  one  of  his  creditors  to  be  held  till  payment,  the 
person  thus  holding  has  a  lien  superior  to  that  of  the  subse- 
quently attaching  creditor.®  If,  after  the  issue  of  the  writ, 
the  sheriff  holds  it  up  by  the  plaintiff's  order,  the  defendant 
may  make  a  valid  mortgage  which  will  outrank  the  attach- 
ment lien  created  by  a  subsequent  levy.'' 

§  836.  The  attaching  creditor  may  contest  the  mortgage 
and  resort  to  all  the  grounds  the  mortgagor  could  urge  against 
the  mortgagee  in  order  to  protect  his  attachment  lien.*     Tak- 

1  Quinn  v.  Halbort,  55  Vt.  224,  227.        ^Whitcomb  v.  Woodworth,  54  Vt. 

2  McPhail  V.  Gerry,  55  Vt.  174.  544. 

^Kelsey    v.    Kendall,    48    Vt.   27;        » Stevens  r.  Wrisley,  30  Vt.   661; 

Allen  V.  McAUa,  25  la.  464;  McGov-  Bank  v.  Drury,  35  id.  469. 
ern  v.  Haupt,  9  id.  83;  Boyd  v.  Beck,        ^  Greely  r.  Reading.  74  Mo.  309. 
29  Ala.  703;  Ue  Verdal  v.  Maloone,        "Gray's  Adm'r  v.  Patton's  Adm'r, 

25  id.  272;  Bearing  v.  Watkins,  16  13  Bush,  625. 
id.  20;  Smith  &  Co.  v.  Zuchee,  9  id.        spjerce  v.  Hall,  12  Bush,  209. 
208;  Magee  v.  Carpenter,  4  id.  469. 


568      creditor's  contests  with  third  parties.     [§§  837,  838. 

ino^  a  mortCTasre  for  an  amount  in  excess  of  the  debt  is  held  a 
badge  of  fraud  if  the  purpose  is  to  save  the  debtor  from  other 
creditors.^  But  though  a  chattel  mortgage  covers  property 
acquired  after  its  execution,  it  is  preferred  to  an  attachment  of 
later  date  if  the  mortgagee  is  in  possession.^ 

Whether  in  mortgaged  property  left  in  the  hands  of  the 
morto:ao:or  there  is  an  interest  which  is  attachable  in  a  suit 
against  him  depends  on  the  question  whether  his  possession  is 
qualified  or  unqualified.  If  the  former,  the  answer  is  neg- 
ative.^ If  the  latter,  the  answer  is  alHrmative;  there  is  an  in- 
terest which  may  be  attached.* 

§  837.  The  fact  that  store-goods  are  mortgaged,  with  the 
right  of  the  mortgagor  to  go  on  making  sales  and  applying 
the  proceeds  to  the  mortgage  debt,  is  not  against  the  right  of 
a  junior  creditor  of  the  mortgagor  to  have  an  account  of  the 
sales  taken  when  he  hasobtained  judgment.^  If  the  mortgage 
is  valid,  only  the  surplus  (if  any)  goes  to  the  attacher.^ 

Manifestly,  if  a  mortgage  is  void  for  any  cause,  it  is  no  im- 
pediment to  attachment.  A  mortgage  on  intoxicating  liquors 
is  void  in  Kansas,  and  also  void  as  to  other  goods  mortgaged 
with  them:  so,  after  the  delivery  of  such  liquors  and  other 
goods  to  the  mortgagee,  they  ma}'  be  attached  despite  the 
mortgage,  on  a  proper  ground  for  attaching.'^ 

§  838.  The  attachment  operates  only  on  the  defendant's 
interest;  it  cannot  displace  the  lien  of  a  third  party  already 
acquired,  or  affect  his  title  ;^  but  if  there  is  illegality  in  the 
act  of  mortgage,  the  attaching  creditor  is  competent  to  show 

1  Showman  v.  Lee,  86  Mich.  556.  gagor  keeping  and  selling.     Sauer  v. 

2  Petring  v.  Heer,  90  Mo.  649.  See  Behr,  49  Mo.  App.  86.  See  Sullivan 
First  N.  Bank  v.  Bank,  71  la.  486.  Savings  Inst.  v.  Kelly,  59  N.  H.  160; 

3  Welch  17.  Whittemore,  25  Mo.  86 ;  Proctor  r.  Green,  id.   350;  First  N. 
Ashley  v.  Wright,  19  Ohio  St.  291;  Bank  v.  Wittish  (Fla.),  15  So,  552. 
Eggleston  v.  Munday,  4  Mich.  298.  « Frantz  v.  Hanford  (la.),  54  N.  W. 

■^So  repeatedly  held  in  Missouri.  474. 

Merchants'  N.   Bank  v.  Abernathy,  Tirst  N.  Bank  v.  Gerson  (Kan.), 

;;2  Mo.  App.   211;  Foster  v.  Patten,  32  P.    907-8;  Flersheim  v.  Gary,   39 

37  Mo.  529;  Boyce  v.  Smith,  16  id.  id.  179.     See  Tucker  v.   Adawis,    63 

317;    Yeldell  v.   Stemmons.    15   id.  N.  H.  361. 

443;  Dean  v.  Davis,  12  id.  113;  King  8  Metts  v.  Insurance  Co.,  17  S.  C. 

V.  Bailey,  8  id.  333.  120.     See  Taylor  v.  Hines,    31   Mo. 

SElsworth  V.  Phelps,  30  Hun,  646.  App.  623. 
It  is  a  badge  of  fraud  —  the  mort- 


§^  839,  S-iU.]  cuMPi/riTioN   wiiii  Assiti^' i-:es.  569 

it;  and  he  must  do  so  or  yield  the  priority.^  He  not  only  has 
all  the  rights  of  the  mortgagor  in  his  attack  upon  the  mort- 
gagee, but  more:  he  is  not  estopped  from  exposing  a  simu- 
lated transaction  when  the  attachment  defendant  was  a  party 
to  the  fraud.  But  an  attachment  subject  to  chattel  mortgages 
cannot  be  maintained  a2:ainst  the  mortgafjees  on  the  ground 
that  the  mortgagees  are  fraudulent  as  to  other  creditors  when 
not  so  as  to  the  attaching  creditor.- 

§839.  Promissory  note  —  Liens. —  The  owner  of  a  promis- 
sory note  assigned  to  him,  which  is  not  governed  by  the  law 
merchant,  holds  it  subject  to  all  equities  existing  before  the 
assignment.  lie  cannot  disturb  the  rights  of  third  persons 
acquired  through  judicial  proceedings  brought  by  an  attach- 
ing creditor  (who  has  no  notice  of  the  assignment)  against 
the  maker  of  the  note.''  Even  a  mortgage  mav  be  foreclosed 
in  such  an  attachment  proceeding,  and  the  purchaser  of  land 
mortgaged  to  secure  such  a  note  as  that  above  suggested 
would  acquire  good  title  to  the  land,  and  would  hold  it  dis- 
charged of  the  mortgage.*  A  judgment  rendered  against  the 
maker  as  garnishee,  in  an  attachment  suit  against  the  payee, 
is  a  good  defense  to  an  action  against  the  maker  by  an  as- 
signee of  the  note,  brought  on  the  note,  if  the  maker  had  had 
no  notice  of  the  assignment  when  the  judgment  was  rendered 
against  him  as  garnishee.* 

YIII.  CoMPETrnox  WITH  Assignees. 

§  840.  An  assignee  who  intervenes  without  filing  the  as- 
signment may  be  ordered  to  state  his  daim  more  specific- 
ally.^ He  must  state  and  prove  the  existence  of  a  debt  when 
he  sets  up  its  assignment  to  him  as  the  basis  of  his  claim. ^ 

1  Mize  V.  Turner  (Ky,),  22  S.  W.  83.     &  Miss.  etc.  Co.  v.  Alvey,  43  id.  180 

2  Rosenfield  v.  Case,  87  Mich.  295.     Barton    v.    Allbright,    29    id.    489 
^  See     Sulzbacher    v.    Shoe,    etc.     Schoppenhast  u.  BoUman,  21  id.  280 

Bank,  52  N.  Y.  Superior,  269;  Yen-  Shetler  v.  Thomas,  IG  id.    223.     See 

able  V.    New  York  Ins.    Co.,  49  id.  Yates  v.  Dodge,  123  III.  50. 

481,  6  Sanger  v.  Flow,  48  Fed.  152.    See 

<  Sharts  v.  Await,  73  Ind.  304.  Boltz  v.  Eagon,  34  id.  432,  in  which 

sCanaday  v.  Detrick,  63  Ind.  485;  an  assignee  for  the  benefit  of  cred- 

Greenman  V.  Fox,  54  id.   267;  Ohio  itors  intervened  to  claim  restoration 

7  Blackley  v.  Matlock,  3  La.  Ann.  366.    See  Williams  v.  Finer,  10  id.  277. 


570  creditor's  contests  with  third  parties.        [§  841. 

In  Rhode  Island  an  assignment  must  be  without  preference, 
in  order  to  discharge  an  attachment,  except  the  preference 
specially  authorized  by  statute;^  and  there,  the  assignment  of 
partnership  property  only,  when  the  debtor  has  other  assets, 
will  not  avoid  an  attachment.- 

Property  of  a  firm  composed  of  a  resident  and  non-resident 
cannot  be  assigned,  in  that  state,  so  as  to  release  attachment. 
Resident  insolvents  may  assign  for  the  benefit  of  their  cred- 
itors.^ When  an  attachment  has  been  released  by  assignment, 
under  the  statute  cited,  the  plaintiff  is  entitled  to  costs  if 
there  has  been  no  decree  for  an  accounting  of  the  partner- 
ship estate  of  the  receiver.* 

In  Louisiana,  cession  to  all  his  creditors  by  the  debtor,  upon 
its  acceptance  by  them,  dissolves  a  prior  attachment.'^ 

§841.  Void  assignment. —  In  New  York  it  was  held  that 
the  sheriff's  title  relates  back  to  the  time  of  the  demand  and 
gives  the  attaching  creditor  a  lien  ranking  that  of  a  sub- 
sequent assignee.^  When  property  capable  of  manual  deliv- 
ery has  been  levied  upon  b}''  a  sheriff  under  a  warrant  of 
attachment,  the  attaching  creditor  may  maintain  an  action  to 
have  a  prior  assignment  (executed  b}'  the  defendant)  declared 
fraudulent  and  void,  and  to  have  the  priority  of  his  attach- 
ment lien  established.'^  And  he  may  do  so,  though  the  de- 
fendant has  confessed  judgment  in  favor  oi  the  assignee,  and 
execution  has  been  issued  upon  such  judgment.^     The  sheriff, 

of  the  assigned  property,  of  which        2  Aldrich  v.  Arnold,  13  R.  I.  655. 
he  had  been  dispossessed  by  the  at-        ^Pub.  Stat,  of  R.  I.,  ch.  237,  §  12; 
taching  creditor.     An  insolvent  as-  Wheelock,  In  re  (R.  I.),  28  A.  966; 
signed   his   attached   property,   and  Alves  t\  Barber,  17  R.   T.  712;  Phil- 
the  attaching  creditors  agreed  that  lips  v.  Newton,  12  id.  489. 
the  sheriff  should  give  the  assignee        ^Bank  of  America,  etc.    v.   Bur- 
possession     subject    to    their     lien,  dick  (R,  I.),  28  A,  967. 
Plume,  etc.  Co.  v.  Caldwell,  26  N.  E.        5  Shwartz  v.  Claflin,  60  Fed.   676 ; 
599.     Only   by   considering  the    as-  Lafollye  u.  Carriere,  24  id.  346;  Tua 
signee  the  sheriff's  keeper  of    the  v,  Carriere,  117  U.  S.  201. 
property  could  the  lien  have  been        *>  Anthony  v.  Wood,  29  Hun,   289. 
rightly  maintained.     The  assignee's        Toley,  In  re,  10  Daly,  4;  Meyer  v, 
independent  possession  would  show  Black,  4  N.  M.   190;  Leon  v.  Scram, 
want  of  jurisdiction  in  the  attach-  58  Tex,  524.     See  PosthofE  v.  Schrei- 
ment  case.     Bush  v.  Nance,  61  Miss,  ber,  47  Hun,  593. 
287.  «  Bates  v.  Plonsky,  28  Hun,  112. 
1  Noyes  v.  Johnson,  13  R.  I.  183, 


§§  842,  843.]  COMPETITION    WiTH    ASSIGNEES.  571 

if  sued  by  the  assignee  for  making  the  attachment  levy  on 
the  property  as  that  of  the  assignor,  may  show  that  the  as- 
signment is  void  as  to  the  attaching  creditor.^  But  the  fact 
that  a  general  assignment  is  void,  by  reason  of  an  insertion 
in  the  act  authorizing  compromise  with  debtors  and  sale  upon 
credit,  does  not  authorize  an  attachment  to  issue  under  sec- 
tion 636  of  the  Code  of  Procedure.^ 

A  debtor's  assignment  of  his  property  held  by  a  third  per- 
son will  not  hold  against  a  prior  attachment  in  the  hands  of 
such  third  person,  though  the  sheriff  had  been  denied  posses- 
sion on  demand.^ 

§842.  Assignment  in  foreign  state. —  An  assignment  made 
in  one  state,  of  personal  property  in  another,  is  doubtless  good 
Ul";  between  the  assignor  and  the  assignee  so  soon  as  it  has 
been  executed  and  actually  or  constructive!}'  delivered.  If 
mailed  to  the  assignee,  it  is  constructively  delivered  to  him  as 
soon  as  it  is  put  into  the  postoffice,  since  the  carrier's  posses- 
sion is  that  of  him  to  whom  he  bears  the  letter  or  package. 
1*^0  actual  delivery  of  the  personal  property  described  in  the 
assignment  is  absolutely  necessary  to  the  completion  of  the 
title  of  the  transferee.* 

Is  such  assignment  good  as  to  third  persons?  "Would  it  de- 
feat an  attachment  of  the  propert)^  made  after  the  mailing  of 
the  instrument  by  the  assignor  and  before  its  receipt  by  the 
assignee?  That  must  depend  upon  the  lex  rei  sitce.  If  the 
assignment,  made  in  another  state,  is  valid  against  third  per- 
sons by  the  law  where  the  property  is  situated ;  if  the  policy 
and  the  juridical  morals  of  both  states  agree;  if  the  assign- 
ment would  not  have  contravened  the  law  of  the  state  in 
which  it  is  to  be  executed,  had  it  been  made  there,  the  trans- 
fer is  good  as  to  third  persons;  and  it  would  defeat  an  attach- 
ment made  after  the  constructive  delivery  of  the  instrument 
but  before  its  actual  receipt  by  the  assignee.^ 

§  843.  In  Missouri  it  was  held  that  an  assignment  which  was 
void  by  the  law  of  another  state  where  it  was  made  would 
outrank  an  attachment  made  in  Missouri  b}'  a  non-resident, 
when  the  assignment  was  delivered  before  the  attachment 

1  Carr  v.  Van  Hoesen,  26  Hun,  316.        *  Johnson  v.  Sharp,  31  Ohio  St.  618. 

2  Milleken  v.  Dart,  20  Hun,  24.  &Id. 

3  Anthony  v.  Wood,  29  Hun,  239. 


572  CREDITOR  S    CONTESTS    WITH    THIRD    PARTIES.  [§  844. 

was  served,  and  was  recorded  before  the  writ  of  execution 
nnder  the  attachment  judgment  had  been  issued,  since  the 
assignment  was  such  as  would  have  been  valid  if  made  in 
Missouri.^ 

If  an  assignment  is  valid  where  made  but  void  where  it  is 
meant  to  have  effect,  it  ought  not  to  be  maintained  against  a 
subsequent  attachment  made  at  the  latter  place.  If  the  law 
of  the  former  place  allows  preference  among  creditors  to  be 
created  by  the  assignment,  while  that  of  the  latter  inhibits 
such  practice  as  fraudulent,  the  assignment  cannot  be  enforced 
in  the  latter. 

§  844.  For  'benefit  of  creditors. —  A  general  assignment  by 
an  insolvent,  for  the  benefit  of  all  his  creditors,  cut  off  an  at- 
tachment made  within  four  months  before  the  assignment,  by 
provision  of  the  late  bankrupt  law  of  the  United  States.  The 
adjudication  vested  the  property  in  the  assignees.^  As  that 
law  is  no  longer  operative,  it  seems  idle  to  discuss  whether 
the  right  of  an  attaching  creditor,  vested  under  the  statute  of 
his  state,  could  be  constitutionally  divested  by  a  subsequent 
general  assignment  in  bankruptcy. 

The  property  of  an  Insolvent  bank  may  be  attached  before 
a  receiver  has  been  appointed  or  before  the  sheriff  has  been 
put  in  possession  by  the  court.''  If  a  receiver  is  afterwards 
appointed,  the  attachment  lien  holds  good.* 

Under  a  statute  of  Nevada,  the  attachment  lien  is  preserved 
and  ma\'^  be  enforced  by  judgment  and  execution,  notwith- 
standing an  order  staying  proceedings  against  the  insolvent 
debtor  in  pursuance  of  the  act  for  the  relief  of  insolvent  debt- 
ors.* In  Oregon,  attachment  is  dissolved  b}^  an  assignment  to 
creditors,  and  a  subsequent  judgment  and  sale  in  the  attach- 
ment proceedings  are  void.^ 

In  any  state  having  a  general  statute  of  this  character,  it 

1  First  National  Bank  v.  Hughes,  3  Arnold  v.  Weimer  (Neb.),  58  N. 
10  Mo.  App.  7.  W.  709;  Hubbard  v.  President,  etc., 

2  U.  S.  Rev.  Stat.,  §  5044;  Barker  7  Mete.  (Mass.)  340;  Walling  v. 
V.  McLeod,  14  Nev.  148,  153;  Good-  Miller,  108  N.  Y.  173;  Von  Roun  r. 
Ime  V.  King,  55  Cal.  377;  Risley  v.  Superior  Court,  58  Cal.  358. 
Brown,  67  N.  Y.  160;  Miller  v.  <  Arnold  r.  Weimer,  si/j^ra. 
Bowles,  58  id.  253;  Morgans.  Camp-  5  Benjamin  v.  Stern,  14  Nev.  41"). 
bell,  22  Wall.  381;  WestPhila.  Bank  ^McKinney  v.  Baker,  9  Oreg.  74; 
V.  Dickson,  95  U.  S.  180.  Tichenor  v.  Coggins,  8  id.  270. 


f§  S-15,  84G.]  COMPETITION    WITH    ASSIGNEES.  57iJ 

must  be  considered  that  a  creditor  suing  out  an  attachment 
does  so  subject  to  the  law,  that  his  right  by  reason  of  his  at- 
tachment is  only  conditionally  vested. 

§  845.  Partnershii)  iwopertij. —  An  attachment  lien  on  the 
property  of  a  firm  was  held  to  entitle  the  holder,  who  had 
had  it  matured  b}'-  judgment,  to  intervene  in  a  bankruptcy 
proceeding  against  the  property  of  the  firm,  subsequently  sur- 
rendered, because  one  of  the  two  members  of  the  assigning 
firm  l.ved  out' of  the  country  so  that  the  court  could  not  ad- 
judge both  to  be  bankrupts.^  This  seems  right  when  it  is 
considered  that  the  intervenor's  judgment  was  against  the 
property  that  had  been  attached.  But,  after  the  filing  of  the 
petition  in  bankruptcy,  no  attachment  lien  could  be  subse- 
quently^ obtained  that  would  support  an  intervention  in  the 
bankruptcy  proceedings,  if  all  the  bankrupts  are  legally  be- 
fore the  court.- 

An  assignment  of  partnership  property  by  one  member  of 
the  firm,  if  ratified  afterwards  by  the  firm,  was  held  good  from 
its  date  as  to  the  assio^nee  but  not  as  ao^ainst  a  creditor  who 
had  attached  before  the  ratification.^ 

In  Georcjia  an  attachment  suit  need  be  af):ainst  no  more 
than  one  partner,  though  brought  on  a  debt  of  the  firm  ;^  and 
that  is  so  wherever  there  is  solidarity  of  obligation.  If  the  in- 
terest of  one  partner  is  to  be  executed  under  a  judgment 
against  him,  property  belonging  to  his  firm  may  be  seized  in 
order  to  sell  such  interest,  in  Kansas.^ 

A  partnership  was  dissolved.  One  partner  assumed  all  the 
debts  and  took  all  the  property,  with  consent  of  the  other,  in 
consideration  of  notes  given  him  by  the  latter,  who  sued  upon 
them  and  attached  the  effects  of  the  late  partnership.  It  was 
held  that  a  firm  creditor  could  not  intervene.^ 

^^^Q.  Fraud. —  Collusive  attachment,  just  prior  to  an  as- 
signment by  the  debtor,  for  the  purpose  of  giving  preference 

1  Burton  &  Watson,  Matter  of,  9  »  Hershfield  v.  Claflin,  25  Kan.  166. 

Ben.  324.  6  Stansell  v.  Fleming,  81  Tex.  294; 

2Vogel  &  Reynolds,  Matter  of,  9  Nojes  ^•.  Brown,  75  id.  458;  Building 

Ben.  498.  Ass'n  v.  King,  71  id.  7C9;  Johnson  v. 

3  Holland  v.    Drake,   29   Ohio  St.  Heidenheiiner,  65  id.  263;  Nenney  r. 

441.  Schluter,  63  id.  827;  Pool  v.  Sanford, 

*  Cannon  v.   Dunlap,  64  Ga.  6S0;  52  id.  621;  Whitman  v.  Willis,  51  id. 

Ga.  Code,  §  3276.  421 ;  May  berg  v.  Steagall,  id.  351. 


5T-i  creditoe''s  contests  with  third  parties.        [§  S-iT. 

to  certain  creditors,  may  be  set  aside  at  the  instance  of  other 
creditors,  even  though  they  may  not  yet  have  proved  their 
claims,  it  is  said.^  The  right  to  set  it  aside  is  clearer  when 
there  is  no  ground  for  attachment.^  And  an  assignee  is  not 
precluded,  by  a  judgment  sustaining  attachment  on  the  ground 
that  the  fund  in  the  garnishee's  hands  was  fraudulently  as- 
signed, from  intervening  and  asserting  his  rights  as  assignee.^ 
§  847.  Receivers. —  A  creditor  who  has  attached  certain 
property  of  his  debtor  cannot  intervene  to  oppose  the  ap- 
pointment of  a  receiver  in  a  suit  by  other  creditors  against  the 
same  defendant.^  A  judge  cannot  direct  a  receiver,  appointed 
by  another  court  in  another  case,  to  take  charge  of  property 
attached  in  his  court.  The  attaching  creditor  has  the  right 
to  have  the  property  remain  in  the  court  where  he  brought 
his  action.^  * 

1  Moore  v.  Stege  (Ky.),   18  S.  W.  2  Frieberg  v.   Frieberg   (Tex.),    1^ 

1019.     An  assignment  for  the  bene-  S.  W.  791. 

fit  of  creditors  ranks  above  an  at-  ^  Menkel  v.  Gumbel,  57  Miss.  756. 

tachment  writ  issued  but  not  exe-  *  State  ex  rel.  v.  Court  (Wash.),  34 

cuted.     Blakely  v.  Smith  (Ky.),  26  P.  430. 

S.  W.  584.  5  Id. 

*See,  relative  to  assignment,  §§  262-267,  270,  870,  413-427,  544,  743. 


i 


CHAPTEE  XXL 

RIGHTS  OF  PURCHASERS. 

I.  Buying  Before  Levy  of  Attachment §§  848-855 

II.  Before  Amendment  of  Defects 856-863 

III.  Purchase  at  Attachment  Sale 863-867 

IV.  No  Warranty  of  Title 868-870 

V.  Judgment  Owners'  Sales  as  to  Warranty  —  Differ- 
ence Between  Them  and  Attachment  Sales  .     .     .        871-872 

VI.  General  Liabilities  of  Sellers 873-875 

I.  Buying-  Before  Levy  of  Attachment. 

§  848.  Intervention. —  An  intervenor  may  claim  attached 
property  as  purchaser  before  the  levy.^  When  the  plaintiff 
answered  the  interplea,  and  averred  that  the  purchase  was 
fraudulent,  and  praj'ed  for  judgment  against  the  intervenor, 
was  the  suit  changed  to  an  equitable  action?  Held  tiot,  as  the 
prayer  was  unnecessary.^ 

§  849.  Evidence. —  The  burden  of  proof  is  generally  upon  a 
purchaser  who  bought  of  the  defendant  before  the  levy,  when 
he  intervenes  to  claim  the  property.^  If  the  attaching  cred- 
itor admits  the  purchase  by  the  intervenor,  but  charges  fraud, 
he  has  the  burden;*  and  he  must  also  prove  that,  prior  to  the 
purchase,  the  vendor  was  indebted  to  him,  to  justify  his  seiz- 
ing and  holding  the  property.^ 

An  intervenor,  to  support  his  claim  as  purchaser  from  the 
defendant  before  levy,  may  offer  a  bill  of  sale  unsealed  but 
executed  by  the  manager  of  the  defendant  corporation,  prov- 

1  Wallace  v.  Maroney,  6   Mackey,  Co.,  86  S.  C.  319.    See  Fink  v.  Philps, 

221;  Maus  v.  Bome,    123   Ind.  522;  30  Mo.  App.  431. 
Moss  r.  Sanger  (Tex.),  12  S.  W.  616;        •»  Morgan   v.   Wood,    33  Mo.    255; 

Frieberg  v.  Sanger  (Tex.),  12  S.  W.  Stephens  v.   Oppenheiiner,  45  Ark. 

1136;    Meredith    v.    Wilkinson,    31  492;    Holt    v.    Moore,    37    id.    645; 

Mo.  App.  1.  Beecher  v.    Brookfield,   33  id.  259; 

2Markley  v.  Keeney   (la,),  54   N.  Clinton  v.  Estes,  30  id.  216;  Kemp- 

W.  251.  stead  v.  Johnson,  18  id.  123;  Lahiite 

3  Richards  v.  Viccaro,  67  Miss.  516;  r.  Fiere,  42  La.  Ann.  864. 
Central  R.  &  B.  Co.  v.  Georgia,  etc.         '=  Day  v.  Kendall,  60  la.  414. 


576  EIGHTS    OF   PURCHASERS.  [§  S50. 

ing  the  execution  by  the  manager,^  The  attachment  affi- 
davit is  not  admissible  as  evidence  against  the  intervener 
who  claims  to  have  purchased  before  the  levy,^  as  it  is  not  in 
any  case  of  the  plaintiff's,  to  prove  the  facts  stated  therein, 
against  third  parties.^ 

It  was  held  that  a  letter  to  the  claimant's  wife's  attorney 
by  a  firm,  admitting  its  indebtedness  to  her,  is  admissible  on 
her  claim  of  property  transferred  to  her  by  the  firm,  in  a  suit 
of  creditors  against  the  firm  in  which  the  property  was  at- 
tached, when  it  is  not  shown  that  the  debt  sued  on  antedated 
the  letter.^  But  if  the  debt  was  anterior,  the  letter  would 
be  inadmissible.^  Evidence  that  the  attached  property  was 
bought  by  the  defendant  for  the  intervenor,  and  partly  paid 
for,  but  that  the  intervenor  paid  the  balance,  was  admitted.'' 

§  850.  Contract  to  sell  land. —  The  title  to  real  estate  passes 
from  the  vendor  to  the  vendee  upon  the  completion  of  the 
contract,  and  the  delivery  of  the  deed  is  conclusive  between 
the  parties.  The  recording  of  the  deed  relates  back  to  the 
date  of  the  contract,  though  not  in  such  sense  as  to  afi'ect 
the  title  of  a  bojia  fide  purchaser  who  has  bought  after  such 
contract  and  before  such  recording.  After  the  levy  of  an  at- 
tachment, the  execution  of  a  deed  of  sale  does  not  relate 
back  to  the  date  of  purchase  so  as  to  dislodge  the  attachment 
lien.''  In  such  case  the  purchaser  has  no  lien  for  the  purchase- 
money  paid  of  higher  rank  than  the  attachment  lien.^  The 
buyer  at  the  attachment  sale  takes  title,  if  a  purchaser  from 
the  debtor  has  not  recorded  his  title  before  the  levy  and  re- 
turn,^ But  only  the  debtor's  interest  is  affected  by  the  at- 
tachment lien;  even  unrecorded  interests  of  others  are  unaf- 

1  Gary  Lumber  Co.  v.  Cain,  70  Miss,  80;  Wliite  v.  O'Bannon,  86  Ky.  93. 
628.      '  100. 

2  Dollins  V.  Pollock,  89  Ala.  351.  s  Voorhies  v.  Eiting,  sxi'pra;  Jones 

3  Plume,  etc.  Co.  v.  Caldwell,  35  v.  Allen,  88  Ky.  381.  See  Fox  v. 
111.  App.  49-3,  494.  Ark.  etc.  Co.,  53  Ark.  450. 

4  Bell  V.  Kendall,  93  Ala.  489;  Pul-  ^  Thompson  v.  Shackelford  (Tex.), 
liamy,  Newberry  41  id.  168;  Dwight  24  S.  W.  980;  art.  4332,  Sayles'  Civ. 
V.  Brown,  9  Ct.  83.  Stat,  of  Texas ;  Wright  v.  Lassitei-. 

sZelnicker  v.    Brigham,    74  Ala.  71  Tex.    644;  Lewis',  v.   Johnson,  6S 

598.  id.  450 ;  Borden  v.  McRae,  46  id.  39(i : 

6  Wilson  V.  Lucas,  78  Tex.  292.  Grace  v.  Wade,  45  id.  522.   Comjmre 

7  Voorhies  v.  Eiting  (Ky.),  22  S.  W.  United  States  v.  Howgate,  2  Mackt-y 

(D.  C),  408. 


§  851.]       BUYING  BEFORE  LEVY  OF  ATTACHMENT.  577 

fected  if  the  purchaser  at  the  attachment  sale  have  notice  of 
them.^  It  is  said:  "Until  a  sale  has  been  made  under  a  judg- 
ment or  attachment,  the  lien  acquired  is  subject  to  all  prior 
unrecorded  deeds  and  equities  existing  against  the  land."  ^ 

Even  if  land  has  been  fraudulentl}^  sold  before  attachment 
of  his  interests  therein,  the  sale  will  hold  against  the  levy,  if 
the  debtor's  vendee  has  resold  it  to  an  innocent  purchaser  after 
the  levy,  and  both  deeds  are  recorded — so  held  in  Xew 
Hampshire.^ 

§  851.  The  object  of  the  record  is  to  give  notice  to  the 
world,  and  to  protect  subsequent  purchasers  from  imposition 
as  well  as  to  secure  the  first  vendee  from  disturbance.''  But 
registry  is  not  an  exclusive  means  of  notification.  Knowl- 
edge of  the  contract  of  sale  and  delivery  of  the  unrecorded 
deed,  however  acquired,  is  equivalent  to  registry,  so  far  as  the 
second  purchaser  is  concerned.  Such  second  purchaser,  with 
knowledge  of  the  first  sale,  could  not  perfect  his  title  by  hav- 
ing it  recorded  prior  to  the  registry  of  the  first  transaction, 
since  both  his  purchase  and  his  registry  would  be  vitiated  by  his 
fraud.^  The  onus  of  establishing  such  fraud  by  proving  knowl- 
edge on  the  part  of  the  second  purchaser  would  be  upon  him 
who  should  attack  such  recorded  title;  and  he  would  be  re- 
quired to  prove  it  clearly,  since  it  would  not  suffice  to  render 
the  fraud  merely  probable.^ 

1  Hope  V.  Blair,  105  Mo.  85 ;  Davis  Jackson  v.  Sharp,  9  Johns.  168 ;  Jack- 
V.  Ovvenby,  14  id.  171.  sou   v.    Burgott,  10  id.  457;  Dey  v. 

2  Hope  V.  Blair,  supra;  Maupin  v.  Dunham,  2  Johns.  Ch.  190;  Norcross 
Emmons,  47  Mo.  o05;  Black  v.  Long,  v.  "Widgery,  2  Mass.  506;  Farusworth 
60  id.  182;  Martin  t\  Nixon,  92  id.  30.  v.  Childs,  4  id.  637;  Davis  v.  Blunt, 

3  Ashland  Bank  v.  Mead,  63  N.  H.  6  id.  489;  Prescott  v.  Heard,  10  id. 
435;  Hoyt  i'.  Russell,  56  id.  564;  60.  It  is  held  that  personal  prop- 
Piper  V.  Hilliard,  52  id.  211;  True  v.  erty  in  possession  of  the  sheriff  in  a 
Congdon,  44  id.  48;  Flingu.  Goodall,  suit  to  i-emove  a  cloud  on  a  title 
40  id.  208;  Gordon  v.  Haywood,  2  id.  may  be  attached.  Voss  v.  Murray 
402.  See  Fletcher  v.  Pack,  6  Cr.  87,  (Ohio),  33  N.  E.  Rep.  1112;  Sherman 
133;    Jackson    v.    Van    Dalfsen,    5  v.  Fitch,  98  Mass.  59. 

Johns.  53;  Jackson  v.  Henry,  10  fsHine  i-.  Dodd,  2  Atk.  275 ;  Jack- 
id.  185;  Jackson  v.  Terry,  13  id.  471;  son  v.  Given,  8  Johns.  137;  Jolland 
Jackson  v.  Walsh,  14  id.  407 ;  Ander-  v.  Stainbridge,  3  Ves.  Jr.  478 ;  Nor- 
son  V.  Roberts,  18  id.  515.  cross  u.  Widgery,  2  Mass.  506;  Hinds 

■*  Hall  u.  Gould,  79  111.  16.  v.    Keith.    57  Fed.    10;    Skipper  v. 

5  Worseley  v.  De  Mattos,  1  Burr.  Reeves,   93  Ala.  332 ;  Stix  v.  Keith, 

474 ;  Le  Neve  17.  Le  Neve,  3  Atk.  654 ;  85  id.  465;  Bernheim  v.  Dibrell 
37 


57S  EIGHTS    OF    PURCHASEKS.  [§  852. 

§  852.  Attacker  s  hnoivledge  of  the  sale. — An  attaclier  of 
land  who  knows  that  his  debtor  has  «old  it  though  the  deed  of 
sale  has  not  been  recorded  is  in  the  sanue  predicament  as  a  sec- 
ond purchaser  with  such  knowledge.  The  title  having  passed 
from  his  debtor,  he  cannot  attach  the  property  as  that  of  his 
debtor  without  attempting  a  fraud  upon  the  vendee.^  But 
the  onus  is  upon  the  vendee  or  grantee  to  show  knowledge  of 
his  purchase  on  the  part  of  the  attaching  creditor,  in  case  of 
contest  between  them.  If  he  has  not  come  into  possession,  or 
made  improvements,  or  performed  some  act  of  ownership,  the 
presumption  would  be  against  the  grantee  who  has  not  re- 
corded his  title.^ 

An  attacher  of  land  who  does  not  know  that  his  debtor  has 
sold  it  may  validly  attach  it  before  registry  of  the  sale,''  even 
though  the  deed  is  in  the  hands  of  the  registrar  for  the  pur- 
pose of  being  recorded.**  In  such  case,  though  the  attaching 
precede  the  recording  but  for  an  hour,  the  creditor  is  entitled 
to  the  benefit  of  the  maxim  prior  in  tempore^  potior  in  jure. 
This  rule,  however,  is  not  universal.  There'  is  a  statutory  pro- 
vision in  California  under  which  it  was  held  that  a  deed 
executed  prior  to  the  levy  of  the  writ  of  attachment,  but  re- 
corded afterwards,  will  outrank  the  attachment.^  And  in 
Missouri  it  was  held  that  a  deed  made  prior  to  an  attachment 
but  recorded  afterwards,  before  the  attachment  sale,  would 
rank  the  attachment  lien.^  A  deed  honestly  given  while  at- 
tachment is  pending  will  hold  good  against  a  subsequent 
attachment.^-  Whether  it  is  honest  is  a  question  for  the  jury.^ 

So  far  as  knowledge  of  a  previous  conveyance  affects  the 
validity  of  the  transaction,  Nthe  attachment  of  land  is  like  the 

(Miss.),    11   So.    795;    Miss.    Code  of        ^sigourney  u.  Larned,  10  Pick.  72. 
1892,  §g  159,  4429.  5  Hoag  v.  Howard,  55  Cal.  564. 

1  Lamberton     v.     Merchants'     N.         ^  First  National  Bank  v.  Hughes, 

Bank,    24   Minn.    281.      See    North-  10  Mo.  App.   7;  Chandler  v.  Bailey, 

western,  etc.  Co.  v.  Mahaffy,  3l5  Kan.  89  Mo.  641 ;  Black  v.   Long,   60  id. 

152;  Holden  v.  Garrett,  23  Kan.  98.  181;  Harrington  v.   Fortner,   58   id. 

^  McMechan  v.    Griffing,   3    Pick.  468 ;  Cape  Girardeau  v.  Reuf  roe,  58 

149,  157 ;  Priest  v.   Rice,   1  id.   164 ;  id.  272 ;  Sappington  v.  Oeschli,  49  id. 

Doev.  Routlege,  Cowp.  712;  Wyatt  244. 
V.  Barwell,  19  Ves.  Jr.  435.  7  Dixon  v.  Barnett,  3  Wash.  645. 

*  Jackson  i;.  Chamberlain,  8  Wend.         8  jrieischtuan   v.  Bowser,  62    Ftd. 

620 ;  Jackson  v.  Post,  15  id.  588.  259. 


^  853.]       BUYING  BEFORE  LEVY  OF  ATTACHMENT.  579 

purchase  of  it.  Both  the  attacher  and  the  purchaser  of  land 
which  they  know  to  have  been  convej^.ed  previously  are  alike 
at  fault.  What  is  sufficient  notice  to  the  one  is  sufficient  to 
the  other.^ 

§  853.  Attacliment  as  inircliase. —  Considered  as  in  the  nat- 
ure of  a  purchaser,  the  attaching  creditor  is  deemed  to  have 
made  his  purchase  at  the  time  of  the  laying  of  the  attachment 
writ  upon  the  land ;  for,  if  execution  should  follow,  the  pur- 
chaser at  the  sale  would  look  to  the  state  of  things  existing 
when  the  property  was  attached.  So  far  as  the  validity  of 
the  title  is  concerned,  the  legal  creation  of  the  attachment 
lien  is  all-important.  If  notice  of  a  prior  deed,  unrecorded, 
would  strike  the  attachment  with  nullity  (as  it  would  strike  a 
purchase),  t^A(3;i  must  such  notice  be  conveyed  to  the  creditor: 
when  he  attaches  or  when  he  proceeds  under  execution  after 
judgment  in  an  attachment  case?  It  is  when  he  attaches  — 
execution  being  merely  the  effectuating  of  the  act  then  begun. ^ 
An  attaching  creditor  can  be  on  no  higher  ground  than  his 
debtor  in  attaching  equitable  interests.^  He  cannot  maintain 
an  action  to  redeem  land  covered  by  his  attachment  from  a 
mortgage  executed  by  his  debtor.* 

An  attachment  will  not  hold  good  against  an  equitable 
title.^  Land  sold  with  the  deed  not  recorded  cannot  be  at- 
tached as  the  property  of  the  vendor  so  as  to  defeat  the 
vendee's  unrecorded  title,  if  the  vendee  is  in  possession  before 
the  levy,  thus  putting  the  attaching  creditor  upon  inquiry.^  If, 
however,  a  valid  attachment  lien  has  been  acquired,  it  would 
not  be  lost  by  the  defendant's  subsequent  gaining  of  posses- 
sion by  moving  upon  the  land.'' 

Where  the  law  requires  that  a  transcript  of  the  attachment 
levy  must  be  recorded,  a  purchaser  without  notice,  buying  be- 
fore the  recording,  gets  title  free  from  the  attachment.^ 

iLamont  i\  Cheshire,  65  N.  Y.  30;  424;  Lippitt  v.   Am.   Paper  Co.,    15 

Coffin  V.  Ray,  1  Met.  212,  215;  Priest  K.  I.  141. 

V.  Rice,  1  Pick.  164;  Somes  u.  Brewer,        ^Xucker  v.  Vandemark,  21  Kan. 

2  id.  184;  Bateman  v.  Backus  (Dak.),  263,  268;  Moore  v.  Reaves,  15  id.  150; 

34  N.  W.  66.  Joluison  v.  Clark,  18  id.  157;  School 

2  Coffin  V.  Ray,  1  Met.  212.  District  v.  Taylor,  19  id.  287;  Greer 

3  Wood  V.   Thomas,  39  Tenn.  160.  v.  Higgins,  20  id.  420,  426. 

<  Fisher  v.  Tallman,  74  Mo.  39.  ^  Hiatt  v.  Buliene,  20  Kan.  557. 

5  Brooks  V.   Bush  (Ky.),  1  S.  W.        »  Benjamin  v.  Davis,  73  la.  715. 


580  EIGHTS    OF    PDKCHASEKS.  [§§  854,   855. 

§  854.  Sale  to  defeat  creditors. —  "  It  is  the  well-settled  rule 
in  this  state  [Iowa]  that  the  levy  of  an  attachment  upon  real 
estate  which  the  attachment  debtor  has  conve\^ed  to  another 
to  defeat  his  creditors,  unless  followed  by  supplemental  pro- 
ceedings, creates  no  lien  upon  the  property  so  attached."  ^ 

A  petition  to  set  aside  a  fraudulent  conveyance  and  to  sub- 
ject the  land,  attached  as  property  of  the  grautor,  to  a  judg- 
ment rendered,  is  ineffectual  if  it  fails  to  describe  the  land 
correctly.  A  decree  following  it  does  not  affect  the  title  or 
give  ground  for  sale.^     The  sale  would  convey  no  right.'* 

Land  was  deeded  in  trust  for  the  benefit  of  creditors.  Be- 
fore sale  under  it  by  the  trustee  some  of  the  creditors,  alleg- 
ing the  deed  to  be  fraudulent,  attached  credits  of  the  grantors 
in  the  hands  of  the  trustee.  It  was  held  that  attachment  did 
not  affect  the  sale  and  ratification.*  But  when  an  owner  con- 
veyed land  to  be  reconveyed  to  his  wife,  yet  made  no  recital 
to  show  that  the  deed  was  in  trust,  it  was  successfully  at- 
tacked by  a  creditor  of  the  grantee  while  the  deed  to  him 
stood  upon  record.^ 

§855.  Fraudulent  imrcliase. —  Property  fraudulently  pur- 
chased cannot  be  attached  in  a  suit  against  the  purchaser  so 
as  to  defeat  the  rights  of  the  person  defrauded.^  If  a  pur- 
chaser from  his  debtor  has  possession,  another  creditor  cannot 
attach  the  property  as  that  of  the  debtor  unless  he  shows  the 
sale  to  have  been  fraudulent.^  Such  sale  may  have  been 
against  a  prohibitory  statute  yet  not  fraudulent  as  to  cred- 
itors.^ 

1  Boggs  V.  Douglass  (la.),  56  N.  W.  5  Nelson  v.  Henry,  2  Mackey  (D.  C), 
413  {distinguishing  Taylor  v.  Brans-    259. 

combe,    74  ia.    536);   Clark  v.  Ray-  G  De  Wolf  v.  Babbett,  4  Mason,  289 ; 

niond,  84  id.  251 ;  Boyle  v.  Maroney,  Bradley  v.  Obear,  10  N.  H.  477 ;  Wig- 

73  id.  71 ;  Howland  v.  Knox,  59  id.  gin  v.  Day,  9  Gray,  97 ;  BuflSngton 

46.      Compare    Bridgman    v.     Mc-  v.  Gerrish,  15  Mass.  156;  Hussey  v. 

Kissock,  15  id.  261.  ^'ee  Lippencott  u.  Thoruton,   4  id.    405:    Galbraith  n 

Wilson,  40  id.  428.  Davis,  4   La.    Ann.   95 ;   Parmele  v. 

2  Boggs  V.  Douglass,  supra.  McLaughlin,   9  La.  436 ;  Gasquet  v. 

3  Id. ;  Ward  v.  Brewer,  19  111.  291 ;  Johnson,  2  id.  514. 

Rogers  ?;.  Abbott,  37  Ind.  138 ;  Keep-  ■?  Smith   v.   Bean,    15   N.    H.    577; 

fer  V.  Force,  86  id.  87;  Runnells  v.  Smith  v.  Foster,  41  id.  215;  Horton 

Kay  lor,  95  id.  504.  v.  Buffington,  105  Mass.  399. 

4  Herzberg  v.  Warfield,  76  Md.  8  Blass  v.  Anderson,  57  Ark.  483. 
446. 


§.;  85G,  £57.]     PURCHASE  before  amendment  of  defects.     581 

If  a  transfer  is  void  the  attaching  creditor  may  disregard 
it,  whether  it  has  been  declared  void  or  has  not  been  passed 
upon  judiciall}'.^  A  transfer  without  consideration  will  hold 
against  an  attacher  whose  proceeding  is  not  conformable  to 
statute.-  A  transfer  of  land  by  a  wife,  when  her  husband 
did  not  join  in  the  deed,  was  maintained  by  the  purchaser 
usrainst  an  attachment  of  the  land  in  a  suit  against  the  hus- 
band  and  wife.^  Purchasers  of  attached  property,  pendente 
lite,  need  not  be  made  parties  to  the  attachment  suit.* 

A  creditor,  after  having  obtained  a  personal  judgment, 
issued  execution  and  had  the  judgment  satisfied  in  part.  He 
then  brouofht  an  attachment  suit  to  recover  the  balance  and 
again  obtained  judgment,  but  it  was  held  a  nullity  on  review 
as  the  first  was  sufficient.^ 

II.  Purchase  Before  Amendment  of  Defects. 

§856.  When  no  lien. — ^When  third  persons  have  acquired 
right  to  or  in  property,  at  a  time  when  the  attaching  creditor 
has  acquired  no  lien  whatever,  they  cannot  be  affected  by  a 
subsequent  judgment  in  favor  of  the  attaching  creditor.  The 
purchaser  of  property  at  a  judicial  sale  provoked  by  the  at- 
taching creditor  in  execution  of  a  judgment  upon  a  void  writ 
or  warrant  cannot  hold  against  a  purchaser  from  the  defend- 
ant though  the  latter  may  have  bought  after  the  levy.^ 

If  property  has  been  attached  under  defective  proceedings 
which  are  subsequently  amended,  may  the  debtor  sell  or  hy- 
pothecate it  before  the  amendment  so  as  to  give  the  purchaser 
or  morto-a^ee  a  rig-ht  to  or  in  it  free  from  anv  attachment 
lien? 

§  857.  The  hypothetical  character  of  the  lien  needs  a  word 
of  explanation.  It  is  different  at  different  stages  of  the  pro- 
ceedings prior  to  judgment.  When  the  issue  of  the  writ  cre- 
ates the  lien  it  is  on  the  condition  that  the  execution  of  the 
writ  and  all  other  proceedings  necessary  to  judgment  shall 

1  Lamberts.  Saloy,  37  La.  Ann.  3.  ^Canda  v.  Powers,  38  N.  J.  Eq. 
By  attaching,  the  creditor  elects  to    412. 

treat  the  conveyance  as  void.     Bost-        ^  Hanover  Ins.  Co.  v.  Connor,   20 
wick  V.  Blake,  145  III.  85.  111.  App.  297. 

2Ahern  v.  Purnell,  62  Ct.  21.  5  Hart  v.  Seymour,  147  111.  598. 

6  0'Farrell  v.  Heard,  22  Minn.  189. 


5S2  RIGHTS  OF  pueciiasp:rs.  [§  857. 

follow;  and  where  the  execution  of  the  writ  creates  the  lien^ 
it  is  on  the  condition  that  such  proceedings  shall  follow;  and, 
under  both  practices,  the  preliminary  requisites  must  have 
been  observed  before  such  lien,  dependent  upon  subsequent 
judgment,  can  be  leg{ill37^  brought  into  being.  If  seizure  has 
been  made  and  the  summons  returned  unserved  and  publica- 
tion has  been  ordered,  what  is  the  character  of  the  lien  at 
thatstas:e?  The  debtor  has  not  been  reached:  can  he  sell 
the  seized  property  free  from  the  lien?  If  he  can,  the  attach- 
ment remedy  would  often  prove  worthless.  The  attaching 
creditor  must  have  due  time  in  which  to  comply  with  stat- 
utory requirements.  He  is  guilty  of  no  laches  when  he  has 
caused  a  summons  to  issue  and  publication  to  follow:  it  is  the 
law  which  requires  a  period  in  which  the  advertisement  shall 
stand  and  fixes  the  time  for'  the  sheriff's  return  showing  the 
publication,  and  it  may  be  owing  to  uncontrollable  circum- 
stances that  the  debtor  cannot  be  brought  into  court.  There 
is  a  space  of  time  between  seizure  and  the  completing  of  the 
time  of  notice  when  the  attachment  proceeding  has  not  been 
brought  home  to  the  defendant;  and  then,  though  the  lien  de- 
pends upon  the  publication  for  the  full  time,  the  character  of 
it  is  such  that  the  defendant  cannot  convey  the  attached 
property  free  from  the  incumbrance.  It  has  been  held  that  a. 
pending  attachment  proceeding  cannot  be  treated  collaterally 
as  void  for  errors  that  are  amendable.^  If,  however,  the  pre- 
liminary statutory  requisites  have  not  been  observed,  or  the 
observance  has  been  fatally  defective,  or  the  notice  issued  is 
void  for  any  cause,  the  defendant  may  sell  the  attached  prop- 
erty free  from  lien,  and  an  honest  purchaser  would  acquire  a 
good  title  from  him  at  this  stage. 

1  Barber  v.   Smith,  41  Mich.   138.  Bank,  13  Johns.  127;  Pate  u  Bacon, 

^eeTilton  v.  Cofield,  93  U.   S.    163;  6  Munf.  219;  Totty  v.   Donald,  4  id. 

Kimball,  etc.  Man.   Co.  v.  Vroman,  430;   Barnett  v.    Watson,    1   Wash. 

35  Mich.  310 ;  Merrill  V.   President,  (Va.)    372;    Bentley    v.    Smith,     S 

etc.  of  Kalamazoo,  id.  211 ;  Smith  v.  Caines,  170 ;  Lewis  v.  Locke,  41  Vt.  11 ; 

Canfield,  8  id.  493 ;  Final  v.  Backus,  Wright  v.  Hale,  3  Cush.  486 ;  Crafts 

18  id.  218;  Johnson  v.   Huntington,  v.  Sykes,  4  Graj',   194;  Nimmon  v. 

13  Ct.  47;  Tobey  y.   Claflin,  3  Sumn.  Worthington,    1   Ind.   37G;  Jones©. 

379;  Brace  v.  Benson,  10  Wend.  214;  Miller,  1  Swan  (Tenn.).  319,  relative 

Bartholomew    v.    Chautauqua    Co.  to  amendments  in  attachments  and 

Bank,  19  id.  99;  Lynch  u.  Mechanics'  other  proceedings. 


§§  85S-SG0.]       PURCHASE    BEFORE    AMENDMENT    OF    DEFECTS.        583 

§  858.  If  preliminaries  were  merel}"  irregular  but  the  issued 
notice  void,  the  subsequent  general  appearance  of  the  defend- 
ant would  cure  both  and  render  the  seizure  good,  as  to  him- 
self, from  its  date.  But,  viewed  from  the  position  of  one  who 
meanwhile  honestly  has  purchased  or  acquired  a  lien,  the 
question  is  whether  he  would  be  affected  by  the  subsequent 
appearing  of  the  defendant,  thus  healing  the  defect  of  the 
publication? 

It  was  held  that  a  writ,  void  because  it  did  not  contain  any 
tlirection  to  the  sheriff  to  summon  the  defendant  as  required 
by  statute,  and  because  the  affidavit  did  not  state  the  debt  to 
be  due  as  required,  and  did  not  state  the  amount  of  indebted- 
ness above  all  legal  set-offs,  could  be  amended  only  as  be- 
tween the  parties,  so  that  rights  of  third  persons  intermediately 
acquired  could  not  be  affected  by  the  amendment.^ 

§  859.  Illustration. — ^The  action  was  brought  by  Brunette, 
sheriff,  against  Whitney  for  trespass  by  replevying  timber 
held  under  attachment.  The  validity  of  the  attachment  was 
drawn  in  question;  and  it  was  held  void  on  the  grounds  above 
stated.  Could  such  void  writ  be  amended  i  Mr.  Justice  Paine, 
in  delivering  the  opinion  of  the  court,  said  that  the  statute  of 
amendments  then  in  force  was  "  very  broad  and  liberal.  It 
provided  that  the  court  in  which  any  action  was  pending 
might  *  amend  any  process,  pleading  or  proceeding  in  such  ac- 
tion, either  in  form  or  substance,  for  the  furtherance  of  jus- 
tice,' etc.  But  I  think  this  relates  only  to  such  defects  as  do 
not  render  the  process  absolutely  void.  There  must  be  some- 
thing to  amend,  and  a  void  writ  is  a  nullity.  To  amend  in 
such  a  case  would  be  to  create  a  writ  anew,  giving  it  a  retro- 
active effect."  2  He  added  that  if  a  void  writ  can  be  helped 
by  amendment,  it  can  be  done  only  so  as  to  affect  the  par- 
ties—  not  a  third  person  who  has  acquired  rights  before  the 
amending.^ 

§  800.  In  the  attachment  suit  under  which  the  sheriff  had 
held  the  timber,  the  defendant  had  appeared  and  thus  healed 
the  want  of  notice  so  far  as  he   was  concerned,  but  Whitney 

1  Whitney  r.  Brunette,  15  Wis.  61.     ner  r.  Van   Alstine,  9  Johns.    386; 

2  Citing    Bunn    v.    Thompson,    3    Kyles  v.  Ford,  2  Eand.  4. 

Johns.  190;    Burk  v.  Barnard,  4  id.        ^Citing  Witte  v.  Meyer,   11  Wis. 
309 ;  Bell  v.  Austin,  13  Pick.  90 ;  Gar-    300. 


5Si  EIGHTS    OF    PUKCHASERS.  [§  861. 

had  bought  the  property  before  the  healing  of  the  defect;  and 
as  he  was  not  a  party  to  that  suit,  his  title  was  unaffected  by 
the  emendation. 

It  is  true  that  he  bought  of  the  attachment  defendant,  but 
it  was  held  that  he  was  not  therefore  a  privy  in  such  a  sense 
as  to  render  the  judgment  that  followed  preclusive  against 
himself.  The  learned  justice  said:  ''It  is  true  that  privies  as 
well  as  parties  are  bound  b}''  a  judgment.  But  I  do  not  under- 
stand that  rule  to  go  so  far  as  to  hold  purchasers  bound  by 
subsequent  litigation  in  respect  to  the  property  between  their 
vendors  and  others.  Privies,  within  the  rule,  are  those  who, 
subsequently  to  the  litigation,  succeed  to  the  rights  of  the 
parties." 

It  was  contended  that,  because  the  attachment  defendant 
had  appeared  and  moved  to  set  aside  the  attachment  and  had 
had  judgment  against  him,  the  decree  sustaining  the  proceed- 
ings Avas  res  judicata^  to  which  the  court  say  that  "the  true 
answer  to  this  position  is  that  the  decision  of  a  court,  in  a 
proceeding  in  which  it  has  not  jurisdiction,  does  not  give  it 
jurisdiction.  .  .  .  Upon  any  other  principle  the  decision 
of  any  tribunal  not  having  jurisdiction,  in  favor  of  its  juris- 
diction, would  give  its  judgment  equal  validity  with  that  of  a 
court  having  jurisdiction.  The  question  in  every  such  case  is: 
Was  there  jurisdiction?  and  not:  Did  the  court  assuming  to 
exercise  it  declare  that  there  was?  And  the  power  to  decide 
upon  its  jurisdiction  is  not  the  ver}'^  jurisdiction  in  question. 
For  ever}'^  court  has  this  power,  and  if  that  gave  it  jurisdiction 
it  would  be  the  duty  of  every  court  in  all  cases  to  decide  in 
favor  of  its  own  jurisdiction,  for  the  very  power  to  decide  at 
all  on  the  question  would  show  that  it  had  the  jurisdiction, 
which  is  an  absurdit}^." 

§  861.  Conceding  that  the  personal  judgment  against  the 
attachment  defendant  after  his  general  appearance  was  res 
judicata  as  to  him,  the  court  concluded  that  it  did  not  oper- 
ate on  the  attached  timber  nor  affect  the  title  of  the  purchaser 
who  had  bought  of  the  defendant  before  he  had  appeared. 

As  suggested  by  Chief  Justice  Dixon  in  the  same  case,  this 
principle  has  frequently  been  recognized  in  contests  between 
com))eting  attachers.  When  the  senior  attachment  has  been 
void  for  want  of  the  statutory  requisites,  a  junior  one  has 


§  SG2.]  rUKCIIASE    BEFORIi    AMENDMENT    OF    DEFECTS.  585 

been  given  the  precedence,  though  the  former's  defects  have 
been  subsequently  supplied ;  and,  when  not  supplied,  the  junior 
attacher  may  have  the  senior  writ  set  aside.^ 

Ill  the  latter  case  the  same  court  held  that  the  statutory 
requisite  that  "in  all  cases  where  publication  is  made  the 
complaint  shall  be  first  filed,  and  the  summons  as  published 
shall  state  the  time  and  place  of  such  filing,"  is  essential  to 
the  jurisdiction;  and  that  if  the  property  attached  be  sold  by 
defendant  after  such  publication  and  before  his  voluntary 
appearance  in  the  case,  the  purchaser  would  obtain  a  good 
title.2 

§  862.  Before  the  appearance  of  the  defendant  in  the  last- 
cited  case,  judgment  by  default  had  been  rendered  and  the 
land  attached  had  been  sold  under  execution.  He  then  ap- 
peared to  move  the  setting  aside  of  the  judgment  and  execu- 
tion ;  and  this,  because  of  allegations  affecting  the  merits,  was 
held  to  be  a  general  appearance,  curing  the  defect  of  the 
publication  so  far  as  he  was  concerned,  but  not  affecting  the 
rights  of  the  purchaser  acquired  while  the  attachment  pro- 
ceedings were  yet  void..  The  contest  was  between  two  pur- 
chasers: one  buying  under  the  execution  and  the  other  buying 
of  the  attachment  defendant  before  the  defect  of  the  proceed- 
ings had  been  cured.  It  was  a  case  of  ejectment  by  the  latter 
against  the  former. 

The  judgment  in  the  attachment  suit  was  res  adjudicata 
between  the  parties  to  it,  and  therefore  unassailable  by  col- 
lateral attaciv  so  far  as  the  personal  decree  was  involved;  but 
the  res  of  the  ancillary  proceeding  was  not  the  propertv  of 
the  defendant,  and  the  judgment  must  be  understood  to  have 
reference  to  it  only  as  his  property.  The  general  doctrines 
that  a  judgment  conclusive  between  the  parties  cannot  be 
collaterally  impugned  by  either  of  them,  except  for  fraud  or 

1  Lawless  v.  Hackett,  16  John.  145;  3  id.  199;  Price  v.  Jackson,  6  Mass. 
Davis  u.  Morris,  21  Barb.  152;  Johns-  242;  Gardner  v.  Hust,  2  Rich.  601; 
ton  V.  Fellerman,  13  How.  21 ;  Von  Walker  v.  Roberts,  4  id.  561 ;  Bar- 
Beck  V.  Shuman,  id.  472;  Plummer  net's  Case,  1  Dall.  152;  Kennedy  v. 
V.  Plummer,  7  id.  62 ;  Schoolcraft  v.  Baillie,  8  Yeates,  55. 
Thompson,  id.  446;  Chappel  v.  Chap-  2  \nderson  v.  Coburn,  27  Wis.  558, 
pel,  2  Kern.  215;  Fairfield  v.  Bald-  reaffirming  Whiti:ey  v.  Brunette, 
win,  12  Pick.  388;  Denny  f.  Ward,  supra. 


586  EIGHTS    OF    PURCHASERS.  [§§  SG3,   SG4. 

want  of  jurisdiction/  and  that  a  valid  attachment,  a  valid 
judgment  and  a  valid  sale  give  the  purchaser  a  valid  title,^  do 
not  preclude  one  who  was  not  a  party  to  the  proceedings,  and 
who  did  not  acquire  his  title  from  a  vendor  who  was  a  party 
when  he  sold  (for  had  he  then  been  a  part}'-  the  purchaser 
would  have  been  a  privy),  from  suing  to  recover  his  own  by 
ejecting  a  wrongful  possessor.  The  heirs  of  a  vendor  would 
be  concluded,  as  his  privies,  should  he  convey  his  interest  by 
deed,  to  care  supposed  defects  of  a  title  from  judicial  proceed- 
ings.^ 

III.  Purchase  at  Attachment  Sales. 

§  863.  Statutory  ])roceedin(js. —  When  all  the  proceedings 
including  the  sale  are  in  accordance  with  statute  and  the  gen- 
eral law  applicable,  the  purchaser  obtains  a  title  perfect  as  to 
the  parties  and  their  privies  in  the  attachment  suit.  His  title 
is  also  good  against  the  notified  debtor-owner  of  legally  con- 
demned propert}'-  who  did  not  take  the  position  of  a  party 
defendant  in  the  case;  and  good  against  such  debtor's  privies. 
As  to  all  these,  the  attachment  judgment  is  res  adjudiGata, 
and  therefore  they  cannot  attack  it  collaterally. 

§  864.  Jurisdiction. —  The  purchaser  must  look  to  the  juris- 
diction, if  he  would  be  secure  as  a  bidder  at  the  sale.  He 
need  not  concern  himself  about  the  erroneous  exercise  of  juris- 
diction by  the  court,  when  the  judgment  is  final.  The  rule 
is  comprehensively  and  yet  succinctly  stated  by  the  supreme 
court  of  the  United  States:  "The  doctrine  of  this  court  and 
of  all  the  courts  of  this  country  is  firmly  established,  that  if 
the  court  in  which  the  proceedings  took  place  had  jurisdio- 
tlon  to  render  the  judgment  it  did,  no  error  in  its  proceedings 
which  did  not  affect  the  jurisdiction  will  render  the  proceed- 

1  Abbott  V.  Seniple,  25  111.  107;  N.  v.  Fitzpatrick,  11  id.  81 ;  Tallman  v. 

A.  R.  R.  Co.  V.  Combs,  13  Ind.  490;  McCarty,  id.  401;  Upper  Miss.   Co. 

Ulmer  v.   Hiatt,  4  G.  Greeue,  439;  v.   Whittaker,    16  id.    221;   Foot  v. 

Clark  V.  Blackwell,  id.  441;   Fee  v.  Stevens,  17  Wend.  483. 

Iron  Co.,  13  Ohio  St.  563;  Geurmell  2  Mattingly  v.  Boyd,  20  How.  128; 

V.  Rice,  13  Minn.  400;  Kipp  v.  Ful-  Carney    v.    Emmons,    9    Wis.    114; 

lerton,  4  id.  473;  Fulbright  v,  Caune-  Lackey  v.  Seibert,  23  Mo.  85;  Cockey 

fox,  30  Mo.  425:  Campbell  v.  Moore,  v.  Milne,  16  Md.  200. 

3  Wis.  767;  Stonach  v.  Glessner,  4  id.  3  Mason  v.  Tuttle,  75  Va.  105.   But 

278;  Allen  v.  Lee,  6  id.  478;  Barnum  see  French  v.  Wade,  102  U.  S.  132. 


§  805.]  PURCHASE    AT    ATTACIIMEXT    SALES.  5ST 

ings  void;  nor  can  error  be  considered  when  the  judgment  is 
brought  collaterally  into  question."  ^ 

With  this  rule  to  guide  him,  the  purchaser  must  look  to 
the  statute  which  conferred  the  special  "jurisdiction  to  render 
the  judgment"  and  see  whether  all  the  conditions  precedent 
have  been  observed.  If  any  one  has  been  disregarded  he  will 
purchase  at  his  peril.  He  cannot  safely  rely  upon  decisions 
based  on  other  statutes,  with  reference  to  errors,  but  he  must 
see  Avhat  the  statute  governing  the  judgment  under  which 
he  proposes  to  buy  requires  to  be  done  before  such  jurisdiction 
can  be  exercised.'- 

§865.  Collateral  attaclc. —  While  errors  in  the  exercise  of 
lawful  jurisdiction  to  render  the  judgment  cannot  be  investi- 
gated in  a  collateral  inquiry,  the  jurisdiction  itself  can  be.  A 
court's  decision  in  favor  of  its  own  authority  may  be  collater- 
ally disregarded.  A  jurisdictionless  judgment  is  entitled  to 
no  faith  and  credit  either  in  the  state  where  it  was  rendered 
or  in  any  other.  The  action  of  a  court  of  general  jurisdiction 
cannot  be  investigated  in  a  state  other  than  that  in  which  it 
was  had,  except  for  the  purpose  of  testing  the  judicial  right 
of  action.^ 

1  McGoon  r.  Scales,  9  Wall.  30,  re-  the  progress  of  the  case  were  beyond 
asserted  in  White  v.  Crow,  110  U.  S.  the  reach  of  collateral  inquiry  and 
189.  could  be  assailed  only  in  a  direct 

2  In  Tilton  v.  Cofield,  93  U.  S.  165,  proceeding  had  for  that  purpose  be- 
the  court  cited  Voorhees  v.  Bank  of  fore  a  competent  tribunal."  Let  the 
United  States,  10  Pet.  449,  in  which  purchaser  be  sure  that  the  statutory 
jurisdiction  had  been  sustained  authorization  of  jurisdiction  in  the 
though  (1)  "  no  affidavit  as  required  state  where  he  bids  allows  such  er- 
by  statute  was  found  filed  with  the  rors  to  be  committed  vvithout  fa- 
clerk,  and  the  law  provided  that  if  tality  when  only  custodial  jurisdic- 
this  was  not  done  the  writ  should  be  tion  has  been  acquired.  See  Statu- 
quashed  on  motion;"  (2)  no  notice  torj-Requisites  Jurisdictional,  §§625- 
was  given  or  none  appeared  of  rec-  634 ;  Guaranty  Trust  Co.  v.  Green 
ord ;  (3)  default,  required  by  statute.  Cove  Railroad,  139  U.  S.  145-148. 
Avas  not  made;  (4)  the  required  de-  The  affidavit,  appearing  of  record 
lay  of  twelve  months  before  sale  was  in  the  attachment  proceedings,  is 
disregarded.  Of  this  case  it  is  said  not  questionable  on  a  subsequent 
in  Tilton  v.  Cofield:  "The  court  trial  of  rights  to  the  property  at- 
there  [the  trial  court]  being  dompe-  tached  between  parties  or  privies, 
tent  to  take  jurisdiction,  and  having  Roos  v.  Lewyn  (Tex.),  24  S.  W.  538. 
acquired  jurisdiction  bj"  the  seizure  ^  Gilchrist  v.  West  Virginia  Oil  and 
of  the  property,  this  court  held  that  Oil  Land  Co.,  21  W.  Va.  115;  45  Am. 
all  its  acts  and  orders  made  during  Rep.  555.     The   plaintiff  sued  on  a 


5S8  EIGHTS    OF    PDKCHASEES.  [§§  866,   867- 

AVere  the  highest  tribunal  of  the  country  to  render  a  juris- 
dictionless  judgment,  the  decision  would  not  be  authoritative. 
It  would  not  be  binding  as  a  precedent  upon  that  court  or  any 
other.  Should  it  exercise  judicial  authority  in  any  case  after 
its  jurisdiction  thereof  had  been  exhausted;  or  assume  special 
jurisdiction  —  such  as  that  in  all  attachment  cases  —  when 
none  had  been  statutorily  conferred;  or  trespass  beyond  the 
bounds  of  the  special  power  legislativeh'-  granted  in  such  cases, 
its  deliverances  would  be  coram  nonjudice.  They  would  there- 
fore be  void  as  authority,  though  binding  on  the  litigants  ex 
necessitate  rei,  since  there  would  be  no  means  of  relief.  The 
mandate  to  the  lower  court  would  be  obeyed  in  any  such  case, 
but  the  opinion  delivered  would  not  be  law. 

§  866.  The  collateral  assailant  can  takfe  no  advantage  by 
reason  of  the  want  of  jurisdiction  in  an  ancillar\'  proceeding 
when  there  has  been  a  judgment  rendered  against  the  defend- 
ant which  is  personal  in  effect  as  well  as  form  by  a  court  pos- 
sessed of  jurisdiction  to  render  such  personal  judgment  though 
not  to  decree  privilege  upon  the  property;  and  when  the  sale 
was  made  in  execution  of  such  personal  judgment.  A  rival 
attacher  in  strictly  statutory  proceedings  may  indeed  assert 
any  attachment  lien  he  may  have  acquired  upon  property 
sought  to  be  executed  in  effectuating  the  personal  judgment; 
he  may  ev^en  follow  such  property  when  it  is  in  the  hands  of 
the  purchaser  under  the  personal  judgment;  but  his  position 
is  precisely  like  that  of  any  lien-holder  who  was  not  a  party 
to  the  suit.  To  make  the  matter  plain — if  the  property 
(bought  under  a  personal  judgment,  good  though  the  attach- 
ment proceedings  were  null)  belonged  to  the  defendant  and 
was  unincumbered,  the  purchaser's  title  is  good  and  cannot  be 
impugned  by  the  defendant  or  his  privies  because  statutory 
requisites  have  been  disregarded  in  an  accompanying  attach- 
ment proceeding  which  proved  void  for  want  of  them. 

§  867.  General  and  limited  jyrocecdings  in  rem.—  A  stranger 
to  a  jurisdictional  judgment  and  sale,  claiming  to  be  the  owner 
of  the  property  sold  as  that  of  the  attachment  defendant,  may 

New  York  judgment  and  attached  York  —  so  neither  the  debtornor  his 

property  in  West  Virginia,  but  that  property  had   been    reached   there, 

judgment  was  held  void  because  no-  See   ante,   §§  644-653,   TERRITORIAL 

tice  was  by  publication  only,  and  no  Limits,    and    the    authorities   there 

property  had  been  attached  in  New  cited. 


§  SGS.]  NO    WARRANTY    OF    TITLE.  589 

sue  the  purchaser  and  have  him  ejected.  This  is  so  because 
attachment  proceedings  are  limited  in  their  effect  to  the  pro- 
prietary right  of  the  defendant.  The  distinction  pointed  out 
in  the  first  chapter  (and  which  has  interlarded  all  the  succeed- 
ing ones)  between  proceedings  against  property  of  limited, 
and  those  of  general,  character  must  now  appear  of  great 
practical  importance.  The  former  conclude  the  defendant 
and  his  privies;  the  latter  conclude  all  the  world,  since  "all 
the  world  are  parties,"  as  it  is  often  said,  though  "  there  are 
no  parties  defendant,"  as  it  is  said  as  frequently  —  the  legal 
paradox  being  readily  apprehended  and  reconciled. 

No  one  can  sue  a  purchaser  for  property  bought  at  a  valid 
sale,  which  had  been  condemned  under  general  proceedings 
against  it,  without  becoming  a  collateral  assailant  of  the  judg- 
ment of  condemnation;  and,  as  such,  he  must  prove  fraud  or 
want  of  jurisdiction  before  he  can  maintain  his  action;  for  the 
general  notice  made  it  obligatory  upon  him  to  appear  as 
claimant  to  assert  an}''  right  he  had  hi  or  to  the  7'es  proceeded 
against;  and  a  failai'e  thus  to  appear  rendered  him  powerless 
ever  to  sue  thereafter,  if  the  proceeding  was  free  from  fraud 
and  by  a  court  possessed  of  power  to  hear  and  determine  the 
cause.  He  is  precisel}'  in  the  position  of  a  judgment  defend- 
ant in  an  attachment  case  who  should  attempt  to  assail  the 
judgment  rendered  against  his  property. 

On  the  other  hand,  one  not  a  party  to  a  limited  proceeding 
against  property  (such  as  attachment  is)  is  not  a  collateral 
assailant  of  the  judgment  when  he  sues  the  purchaser  who 
bouirht  under  the  iudoinent.  He  is  not  concluded.  He  mav 
freely  admit  the  jurisdiction  of  the  court  and  the  compliance 
with  all  statutory  requisites,  yet  aver  that  the  property  seized 
and  sold  was  his  own.  The  purchaser  at  an  attachment  sale 
should  therefore  not  only  see  that  the  court  had  jurisdiction 
and  thus  know  that  he  will  be  protected  from  attack  by  the 
defendant,  but  he  should  also  see  that  the  title  he  proposes 
to  buy  was  really  in  the  defendant. 

lY.  Xo  Warranty  of  Title. 

§  868.  Caveat  emptor.^  T\\qvq  is  no  warranty  of  the  title. 
The  judicial  sale  is  provoked  by  a  creditor;  it  is  strictly  a 
creditor's  sale.     Want  of  warrautv  is  not  because  the  sale  is 


590  EIGHTS   OF   PURCHASERS.  [§1869,  870. 

judicial  but  because  it  is  not  the  owner  who  moves  the  court. 
The  creditor  has  no  special  means  of  knowing  more  of  the 
title  sold  than  the  purchaser  has.  The  debtor  does  not  war- 
rant, since  he  does  not  sell.  The  judge  is  not  the  vendor  and 
is  therefore  no  warrantor.  The  executing  officer  is  a  mere 
instrument  of  the  law;  and  though  presumed  to  know  that 
what  he  sells  is  the  defendant's,  he  gives  no  guaranty.  Caveat 
emptor. 

§869.  Creditors  lUibilitij. —  Exception  to  the  general  rule 
of  no  responsibility  in  creditors'  sales  must  be  briefly  pointed 
out.  The  creditor,  though  not  ordinarily  presumed  to  know 
the  title  sold,  any  more  than  the  judge  or  sheriff  does,  is  yet 
the  beneficiary  of  the  sale  —  the  recipient  of  the  price.  It 
has  been  held  that  if  his  gain  is  another's  loss  by  reason  of 
any  agency  of  his,  he  is  liable  to  be  made  to  repair  the  wrong. 
In  other  words,  it  has  been  held  that  if  the  plaintiff  in  execu- 
tion is  instrumental  in  causing  the  seizure  and  sale  of  property 
which  does  not  belong  to  the  judgment  debtor,  and  the  pur- 
chaser is  ejected  at  the  suit  of  a  third  person  on  an  anterior 
and  superior  title,  the  purchaser  can  recover  the  price  of  the 
plaintiff  "  upon  the  principle  that  he  has  parted  with  his 
money,  through  the  agency  of  the  plaintiff,  for  a  considera- 
tion which  has  failed."  ^  The  writer  would  not  be  understood 
to  say  that  mere  agency  in  causing  the  sale  always  renders 
the  creditor  responsible.  In  all  execution  sales  the  creditor  is 
instrumental  in  causing  the  seizure  and  sale.  It  is  emphatic- 
ally so  in  attachments,  as  the  propert}'-  attached  is  taken  by 
the  officer  before  judgment  and  often  long  held  before  final 
sale;  especially  is  the  instrumentality  of  the  attaching  cred- 
itor apparent  when  he  points  out  property  of  the  defendant  to 
be  attached  and  takes  the  o"bligation  of  an  indemnity  bond  to 
the  sheriff. 

§  870.  False  inducements  to  l)uy. —  Doubtless  the  creditor, 
who  causes  a  purchaser  to  buy  property  of  the  debtor  through 
false  assurances  that  the  latter  has  a  good  title,  may  be  held 

1  Sanders  v.    Hamilton,    3    Dana,  Hackiey's  Ex'r  v.  Swigert,  5  B.  Mon. 

550 ;  Brummel  v.  Hurt,  3  J.  J.  Mar.  88 ;  Bartholomew  v.  Warner,  32  Ct. 

709;    Hanna    v.    Guy,    3  Bush,   93;  98;  Piscataqus  v.  Kingsbury.  73  Me. 

Bromfield  v.  Dyer,    7  id.  505;  Wol-  326. 
ford    V.    Phelps,    2  J.  J.     Mar.   35; 


§  STL]         JUDGMENT    owner's    SALES    AS    TO    WARRANTY.  591 

pecuniarily  responsible  for  the  wrong  done  the  purchaser  who  is 
afterwards  evicted  because  the  title  proved  to  be  not  what  it 
was  thus  represented  to  be.  It  does  not  follow  that  the  creditor 
may  be  cited  in  warranty  in  the  ejectment  sdit.  It  is  not  possi- 
ble that  he  can  make  the  title  good.  He  was  not  the  vendor. 
The  sale  was  not  an  owner's  sale.  As  to  the  creditor's  being 
the  beneficiary,  he  raaj^  be  considered  such  rather  than  the 
court  or  the  executing  officer  can  be;  but  the  debtor  is  the 
real  beneficiary,  since  he  gets  his  debt  paid  out  of  the  prop- 
ert}'^  of  another  owner.  The  creditor  is  only  even:  he  had 
a  judgment,  and  that  is  satisfied.  The  debtor  is  the  real 
vendor;  the  court  makes  him  sell  against  his  will.  He  is  not  a 
warrantor  consequently,  for  he  is  not  a  voluntary  vendor.  The 
conclusion  is  that  ordinarily  there  is  no  warranty,  though 
there  may  be  pecuniary  liability  to  the  misled  and  evicted 
purchaser,  on  the  part  of  the  creditor  who  provoked  the  sale 
and  fraudulently  misrepresented  the  character  of  the  title, 
thus  entitling  the  purchaser  to  equitable  relief.^ 

Y.  Judgment  Owners'  Sales,  as  to  Warranty — Difference 
Between  Them  and  Attachment  Sales. 

§  871.  Judicial  sales  provoked  by  owners  are  governed  by 
the  reverse  rule.  There  is  warranty ;  and  the  maxim  caveat 
emptor  is  inapplicable.  There  is  no  difference,  with  respect 
to  obligation  of  warranty,  whether  the  sale  by  an  owner  be 
conventional  or  judicial.  There  is  nothing  sacred  in  the  mode 
of  sale  which  makes  the  owning  vendor  a  guarantor  under  the 
one  method  and  an  irresponsible  contractor  under  the  other. 
All  the  reasons  that  render  a  private  vendor  responsible  for 
the  title  he  conveys  apply  when  any  proprietor  sells  through 
a  court. 

Nearly  all  judicial  sales  are  provoked  by  judgment  credit- 
ors: so,  in  nearly  d^^caveat  emptor  is  applicable;  and  because 
such  sales  are  so  much  more  common  than  owners'  court-sales, 
the  idea  has  become  popular  that  this  mode  of  sale  relieves 
from  warranty.     Were  the  subject  now  specially  in  hand, 

» Cooper  V.  Cooper,  4  Irish  Eq.  (N.  Eq.  325 ;  Preston  v.  Frye,  38  Md. 
S.)75;  Lawrence  r.  Connell,  4  Johns.     322;  Norton  v.  Movers,  25  Ga.  89. 


592 


EIGHTS    OF    PURCHASERS. 


[§  872. 


many  illustrations  of  responsibility  on  the  part  of  the  seller, 
and  relief  to  the  purchaser,  might  be  suggested.^ 

The  mode  is  immaterial.  The  owner  cannot  escape  responsi- 
bilit}^,  whether  his  sale  is  private  or  judicial.  He  is  "  bound 
to  know  that  he  actually  has  that  whicli  he  professes  to  sell."^ 
If  he  conve^'s  nothing,  payment  of  the  price  to  him  would  be 
"  without  the  shadow  of  consideration,"  and  he,  though  act- 
ing by  honest  mistake,  could  not  retain  the  price.^ 

§  872.  Government  sales.—  Governments  selling  as  owners 
necessarily  employ  some  agent  of  sale,  and  usually  sell  through 
the  courts;  but  they  are  none  the  less  morally  bound  to  make 
good  the  conveyance;  and  ours  has  made  itself  legally  so  by 
authorizing  suits  against  itself  in  the  court  of  claims  upon  any 
contract  expressed  or  implied,  which  includes  the  express  or 
implied  contract  of  warranty.  The  rule  governing  private 
contracting  parties  is  fully  applicable  to  the  sovereign  vendor 
when  he  makes  contracts,  and  must  be  applied  by  courts  in 
which  he  allows  himself  to  be  sued;"  for,  otherwise,  his  con- 
sent to  be  sued  would  be  delusive.^ 


1  Sands  V.  Lynham,  27  Gratt.  304; 
McLaughlin's  Adm'r  v.  Daniel,  8 
Dana,  182;  Valle's  Heirs  v.  Fleni- 
ming's  Heirs,  29  Mo.  152;  Shroyer  v, 
Nickell,  55  id.  269 ;  Evans  v.  Snyder, 
64  id.  516 ;  Hudgens  v.  Hndgens,  6 
Gratt.  320 ;  Howard  v.  North,  5  Tex. 
315;  Mocklee  v.  Gardner,  2  Har.  & 
G.  176;  Grant  v.  Lloyd,  12  S.  &  M. 
191;  Petty  v.  Clark,  5  Pet.  481; 
Preston  v.  Frye,  38  Md.  222 ;  Schwin- 
ger  V.  Hickock,  53  N.  Y.  280 ;  Davis 
V.  Railroad,  1  Woods,  G61;  Bland  v. 
Bowie,  52  Ala.  152,  162 ;  Bell  v.  Craig, 
id.  215  {see  McQuiddy  v.  Ware,  20 
Wall.  19;  Gay  v.  Alter,  102  U.  S.  79) ; 
Strode  v.  Patton,  1  Brock,  228 ;  Smith 
V.  Wells,  69  N.  Y.  601 ;  Ingersoll  v. 
Mongam,  84  id.  622. 

2  Allen  V.  Hammond,  11  Pet.  72; 
Garnett  v.  Macon,  2  Brock.  185; 
Gardiner  v.  Mayor,  26  Barb.  423,  and 
cases  cited ;  Martin  v.  McCormick,  4 
Seld.  331 ;  17  Com.  Bench  (N.  S.),  721 ; 
1  Met.  (Ky.)  192-3. 


.  3  Allen  V.  Hammond,  11  Pet.  63, 
71,  72;  Hart  v.  Swayne,  Law  Rep.  7 
Ch.  Div.  42 ;  Hitchcock  v.  Giddings, 
4  Price,  135;  Conturie  v.  Hastie,  5 
H.  Lords  Cas.  673,  681 ;  Daniel  v. 
Mitchel,  1  Story,  190;  Torrance  v. 
Bolton,  L.  R.  14  Eq.  124;  Rice  v. 
Dwight  Man.  Co.,  2  Gush.  80; 
Thompson  v.  Gould,  20  Pick.  139, 
141,  and  cases  cited ;  Gai-dner  v. 
Lane,  9  Allen,  492.  499;  Paddock  v. 
Kittredge,  31  Vt.  383;  Martin  v.  Mc- 
Cormick, 4  Seld.  331 ;  Sugden  on 
Vendors  and  P.  120  (14th  ed.) ;  Fish  v. 
Street,  27  Kan.  270. 

4McKniglit  V.  United  States,  98 
U.  S.  186.  See  Marsh  v.  Fulton,  10 
Wall.  696:  United  States  v.  Arre- 
dondo,  6  Pet.  711;  Polk  v.  Wendall, 
9  Cr.  87-99.  If  the  plaintiff's  money 
is  "wrongfully  in  the  treasury*,  and 
an  implied  contract  results  in  the 
nature  of  a  contract  for  money  had 
and  received,  he  can,  on  the  plainest 
principles  of  common  justice,  main- 


§  ST3.]  GENERAL    LIABILITY    OF    SELLERS.  593 

In  government  cases  of  forfeiture,  the  judicial  sales  that  fol- 
low condemnation  are  not  in  execution  of  the  judgment.  The 
government  becomes  the  owner  by  the  forfeiture,  and  need 
not  sell  at  all.  It  does  not  become  a  judgment  creditor  bound 
to  sell  to  effectuate  the  judgment.  It  sells  because  it  does 
not  choose  to  become  a  general  property-holder,  and  because 
the  statutes  authorizing  the  forfeiture  proceeding  usually  pro- 
vide for  sale  to  follow.  Some  of  such  statutes  provide  for  the 
retention  of  the  condemned  res  by  the  government;  one  or 
more  authorize  its  private  sale. 

In  proceedings  in  rem  against  hostile  and  guilty  things,  the 
libelant  becomes  the  owner  upon  judgment  of  condemnation  — 
rather,  he  is  judicially  recognized  as  having  been  the  owner 
from  the  date  of  the  forfeiture  now  judiciall}^  declared:  so  he 
sells  as  owner,  through  the  court.  In  such  proceedings  against 
things  indebted,  he  sells  as  judgment  creditor,  and  therefore 
does  not  warrant  the  title.  For  the  same  reason  the  attach- 
ment creditor  does  not  w^arrant  it,  though  he  sells  to  enforce 
a  judgment  in  rem. 

YI.  General  Liability  of  Sellers. 

§  SYS.  Error  and  fraud. —  A  brief  digression  may  be  al- 
lowable to  show  the  duties  and  liabilities  of  vendors.  Lesfal 
as  well  as  moral  fraud  invalidates  a  sale.  It  is  legal  fraud 
for  one  to  sell  what  he  does  not  own,  even  though  he  sell 
through  honest  mistake;  and  the  purchaser  is  entitled  to  re- 
lief and  complete  indemnification.^  A  mistake  is  as  good  a 
ground  for  relief  as  fraud.-     The  law  holds  the  vendor  bound 

tain  this  action  and  recover  it  back."  De  G.  &  J.  316;  Bower  v.  Fenn,  90 

Brand    v.    United  States,    5   Ct.  of  Pa.  St.  362. 

Claims,  312;  Bank  Cases,  10  id.  519;  2  Daniel  v.  Mitchel,  1  Story,  190; 
United  States  v.  State  Bank,  96  U.  S.  Paddock  v.  Kitredge,  31  Vt.  383 ; 
30.  In  a  sale  by  the  government,  of  Smith  v.  Richards,  13  Pet.  38;  Tor- 
goods  captured  in  war,  there  is  an  rence  v.  Bolton,  L.  R.  14  Eq.  Cas. 
implied  warranty  of  title  to  the  pur-  12i;  Reese  River  S.  M.  Co.  i'.  Smith, 
chaser.  Port  r.  United  States  (Court  L.  R  4  H.  L.  Cas.  80;  Peck  v. 
of  Claims),  19  Law  Reporter,  12.  See  Guerny,  L.  R,  79,  113;  Redgrave  v. 
foot-note  in  2  Kent,  p.  632.  Hurd,  20  Ch.  Div.  12,  13;  Pljelps  v. 
1  Hart  V.  Swaine,  Law  Rep,  7  Ch.  White,  7  L.  R.  Irish  Eq.  160;  Mathias 
Div.  42;  Rawlins  v.  Nickham,  3  u  Yetts,  46  L.  T.  (N.  S.)  497. 
38 


501  EIGHTS    OF   PUECHASEES.  [§  873. 

to  know  that  he  has  that  which  he  sells;'  and  the  purchaser 
ma\'  rightfully  rel}^  upon  his  representations.^  And  a  mis- 
representation in  a  judicial  sale,  misleading  the  purchaser,  en- 
titles him  to  relief  as  fully  as  if  made  in  a  private  sale.' 

"  The  juridical  influence  of  error  is  united  with  the  juridical 
facts  of  a  case,  ex  facto  oritiu^  jus^  or  with  the  grounds  of  the 
rise  and  fall  of  the  legal  relations.  Error  may  modify  excep- 
tionally the  regular  consequences  of  judicial  facts.  Where 
there  is  no  contract  for  want  of  an  aggregatio  mentium,  the 
conclusion  is  clear.  Where  error  does  not  affect  the  legal 
relations  there  is  restitutio  in  integrum.  The  idea  of  the  law 
is  to  give  relief  where  no  fault- exists ;  where  it  is  difficult  or 
impossible  to  avoid  an  error  of  law  relief  is  given."  * 

Kesponsibilitv  cannot  be  escaped  on  the  argument  that  the 
other  contracting  party  had  notice  of  the  nullity  of  the  title 
when  the  mutual  stipulations  were  entered  into.  If  one  had 
notice,  both  had;  for  the  selling  contractor  was  bound  to 
know  that  he  legally  owned  that  which  he  professed  to  sell.^ 

It  was  said  of  vendors:  "The  defendants  undertook  to  sell 
sometJiing  when  really  they  had  nothing  to  sell.     The  thing 

1  Allen  V.  Hammond,  11  Pet.  73;  chaser  paid  the  price  and  took  pos- 

Crarnett    v.    Macon,    2    Brock.    285 ;  session,  but  was  afterwards  evicted 

Cato  V.  Thompson,  47   L.  T.  (N.  S.)  of  a  portion  at  the  suit  of  another. 

491,  It  was  held  that  notwithstanding  the 

-  Boyce    v.    Grundy,    3    Pet.  218;  purchase-money  received  at  the  judi- 

Mead  v.  Bunn,  32  N.  Y.  275;  Brown  cial  sale  had  been  partially  distrib- 

V.  Rice's  Adm'r,  27  Gratt.  474;  Park-  uted,  the  purchaser  was  entitled  to 

ham   V.    Randolph,    5   How.   (Miss.)  compensation,  because  he  had  not 

451;  Reynell  v.  Sprye,  1  De  G.,  M.  &  got  what  the  court  had  assumed  to 

G.  710;  Smith  v.  Reese  River   S.  &  sell.     To  the  same  effect:  Strode  v. 

M.  Co.,  L.  R.  2  Eq.  264.  Patton,    1   Brock.    228;  Ingersoll  v. 

3  Cooper  V.  Cooper,  4  Irish  Eq.  R.  Mongam,    84  N.    Y.   622;   Smith  v. 

(N.  S.)   75;  Lawrence  v.   Cornell,  4  Wells,  69  id.    601;  Shirley's  Adm'r 

John.  Ch.   352 ;  Preston  v.  Frye,  38  v.  Jones,  6  B.  Mon.  275.     The  case  of 

Md.  222 ;  Norton   v.  Moyers,  25  Ga.  The  Monte  Allegre,  9  Wheat.  616,  in 

89;  City  of  Charleston  v.  Blohme,  15  which  caveat  emptor  was  invoked, 

S.  C.  124.     {See  State  v.  Gaillard,  2  was  not  a  sale  by  the  United  States 

Bay,  11;  Means  v.  Brickell,  2  Hill,  as  oicners  of  property  adjudicated 

657 ;  Adams  v.    Kibler,  7   S.  C.  58 ;  to  them. 

Mitchell  V.    Pinckney,   13  id.    202.)  ^Snell  v.   Insurance  Co..  98  U.  S. 

In  Cooper  v.  Cooper,  property  sold  85:  Merchants' Bank  of  Baltimore  r. 

under   a  decree  was  represented  as  Campbell,  75  Va.  455. 

within  certain  bounds  and  contain-  5  Allen  v.  Hammond,  11  Pet.  72; 

ing  a  specified  quantity.     The  pur-  Garnett  v.  Macon,  2  Brock.  185. 


^,5  874,  875.]  GENERAL    LIABILITY    OF    SELLERS.  595 

intended  to  be  sold  had  no  legal  existence;  and  where  that  is 
the  case,  there  can  be  no  contract  of  sale."  ^  "  It  was  not 
selling  an  interest  svlject  to  chance,  for  the  defendant  had  no 
interest  at  all  to  which  a  chance  could  attach."^ 

§  874.  NulUti/. —  If  the  sale  is  merely  apparent,  not  in  the 
least  degree  real  and  actual,  it  is  without  any  judicial  exist- 
ence; and  its  legal  non-existence  may  be  urged  by  the  true 
proprietor  against  the  buyer  as  much  as  by  the  buyer  against 
the  seller.'  "The  obligation  to  do  justice  rests  upon  all  per- 
sons, natural  and  artificial;  and  if  a  county  obtain  the  money 
or  property  of  others  without  authority,  the  law,  independ- 
ent of  any  statute,  will  compel  restitution  or  compensation."  ^ 

The  nuUit}'  of  a  judgment  precludes  the  application  of  ca- 
veat emptor,  and  renders  caveat  venditor  the  proper  maxim; 
for  "  the  vendee  might  resist  an  action  for  the  purchase-money 
by  showing  that  no  contracts  of  sale  could  grow  out  of  that 
■which  was  in  law  a  nullity.^  And  it  has  been  held  frequently 
that  money  paid  under  a  void  judgment  or  sale  may  be  re- 
covered back  on  the  ground  of  a  failure  or  want  of  consid- 
eration.^ 

§  875.  Autlxoritij  to  sell. —  It  is  the  duty  of  the  selling  party 
to  see  to  the  sufficiency  of  the  authority  for  selling.^  The 
purchaser,  even  at  a  tax  sale,  has  the  right  to  presume  that 
the  officer  selling  has  authority  to  sell  what  he  offers,  and  he 
may  recover  the  price  bidden  and  paid,  if  the  officer  had  no 
authority  or  if  the  state  bad  no  right  to  sell.^ 

1  Gardner  v.  The  Mayor,  26  Barb.  v.    Leet,   8   Paige,  337 ;    Seaman  v. 

at  p.  427,  and  the  authorities  there  Hicks,   id.   655 ;  Brown  v.  Frost,  10 

cited ;  2  Kent,  468 ;  1  Story,  Eq.  Jur.,  id.  243. 

t5§  142,  143.  ^Nevvdigate  v.  Davy,  1  Ld.  Rayra. 

!^  Hitchcock  V.  Giddings,  4  Price,  742;  Chapman  v.  City  of  Brooklyn, 

135,quoted  in  26  Barb,  (just  cited),  at  40  N.  Y.  372 ;  McGoren  v.  Avery,  37 

p.  426.  Mich.  121-2;  Norton  v.  Rock  Co.,  13 

» Bender r.  Fromberger, 4DalI.  436.  Wis.  611,  612-13;  Hendersons.  Over- 

4  Marsh  v.  Fulton  Co.,  10  Wall,  ton,  2  Yerg.  394;  Sands  t;.  Lyndham, 
676;  United  States  v.  Arredondo,  6  27  Gratt.  291,  304;  Earl  v.  Bicksford, 
Pet  711 ;  McKnight  v.  United  States,  6  Allen,  549,  550. 

98  U.  S.  186.  'Norton    v.   Rock    Co.,    13    Wis. 

5  Commissioners      v.     Watts,      10  611-13;  McGoren  u.  Avery,  37  Mich. 
Watts,  392-3 ;  Bramfield  v.  Dyer,  7  121 ;  Gardner  v.  Mayor,  26  Barb.  423. 
Bush,  505,  508;  Darwin  v.  Hatfield,  §13  Wis.  611-13;  37  Mich.  121-2; 
4    Sandf.    Sup.    Ct.    468;    Shirley's  cited  in  full  on  the  previous  point. 
Adm'r  v.  Jones,  6  B.  Mon.  275 ;  Post 


596  RIGHTS   OF   PUKCHASEES.  [§§  876,  877. 

§  876.  Stiimlation  of  warranty. —  No  particular  form  of 
words  is  legally  prescribed  for  the  stipulation  of  warranty.* 
The  existence  of  that  which  is  the  object  of  the  price  !s  al- 
ways warranted,  without  the  necessity  of  express  guaranty 
in  the  deed.  Acceptance  of  the  price  by  the  seller,  whether 
a  private  or  sovereign  vendor,  is  ratification  of  the  warranty.^ 

§  877.  Damages. —  When  any  one,  not  an  owner,  has  sold 
real  estate  as  his  own,  and  the  purchaser  has  been  evicted  of 
the  property,  and  made  accountable  for  the  rents  from  the 
date  of  his  possession,  it  has  been  held  that  the  rule  of  dam- 
ages is  "  the  consideration  or  value  of  the  land  at  the  time  of 
the  sale  as  then  agreed  upon  by  the  parties  or  as  determined 
by  the  price  paid,  with  interest  for  such  time  as  the  purchaser 
has  been  deprived  of,  or  is  accountable  to  the  superior  owner 
for  the  mesne  profits,  together  with  the  costs  in  defense  of 
the  action  by  which  the  party  was  evicted."  ^ 

iNewcomb    v.   Presbrey,    8   Met.  310;  2  Ct.    of    CI.    476;    McKee  v. 

410;  Van  Rensselaer  v.  Kearney,  11  United  States,  12  Ct.  of  CI.  537;  9  id. 

How.  333,  333,  335;  Chitty  on  Contr.  187,  196. 

G43  (11th  ed.).  3  gender  v.  Fromberger,  4  Dallas, 

2  Brown  u.  United  States,  6  Ct.  of  436-444;    3    Greenleafs   Ev.,    §   264 

CI.  171;  Veazie  v.  Williams,  8  How.  and  cases  cited;  4  Kent's  Com.  *474, 

157;  Elwell  v.  Chamberlin,  31  N.  Y.  475,  and  cases  cited. 
619;  Churchill  v.  Palmer,  115  Mass. 


CHAPTER  XXIL 

JUDGMENT. 

I.  Default §§  878-880 

II.  Judgment  Nisi 881-880 

III.  Final  Judgment 887-892 

IV.  Perfecting  the  Lien 893-904 

V.  Appeal 905-907 

VI.  Attachment  Sale 908-914 

VII.  Distribution 915,916 

VIII.  Judgment  for  Defendant 917-920 

I.  Default. 

§  878.  When  taken. —  After  service,  or  after  the  entry  of  ap- 
pearance, the  defendant  may  be  defaulted  if  he  does  not  plead 
within  the  given  time.  This  is  not  different  in  attachment 
suits  from  what  it  is  in  ordinary  actions  so  far  as  the  personal 
cause  is  concerned.  The  court  has  jurisdiction  over  the  de- 
fendant when  he  has  been  served,  or  when  he  has  appeared 
whether  served  or  not.  And  the  conjunction  of  seizure  and 
service  (or  seizure  and  appearance  without  service)  gives  juris- 
diction over  the  res.  Both  the  personal  and  attachment  suits 
being  in  the  same  proceeding,  one  answer  will  suffice  to  pre- 
vent judgment  by  default  in  both.  When  they  are  separate, 
the  defendant  of  the  main  suit  should  plead  in  both ;  but  should 
he  successfully  defend  in  the  personal  suit,  the  other  would 
fall  to  the  ground  with  it  whether  there  was  any  denial  of  the 
alleged  grounds  for  attachment  or  not;  for,  manifestl}'',  if 
there  be  no  debt  or  cause  of  action,  there  can  be  no  perfecting 
of  a  lien  upon  the  property  attached. 

§  879.  Default  should  not  be  entered  when  the  plaintiff  has 
filed  no  petition  or  complaint  but  merely  the  affidavit.^  After 
the  filing  of  both,  and  service  and  seizure,  there  can  be  no 
default  till  the  expiration  of  ten  days,  or  whatever  time  is 

1  Jones  V.  Howard,  42  Ala.  488;  Penn  v.  Edwards,  id.  655;  Woolkins  v. 
Haid,  49  Mich.  299. 


598  JUDGMENT.  [§  880. 

allowed  for  appearance  in  any  state.^  After  it  has  been  en- 
tered the  defendant  has  the  privilege  of  setting  it  aside,  on 
motion,  within  a  prescribed  time  (usually  three  da3^s),  and  then 
filing  his  answer.  He  has  the  full  time:  even  if  the  jury  has 
been  impaneled  he  may  answer  and  deny  the  averments  of 
the  aflQdavit  and  prevent  final  judgment  by  default.^  If  he 
neglect  to  answer,  and  the  default  be  confirmed,  the  judgment 
is  final.  He  could  only  have  relief  by  obtaining  an  order,  on 
proper  showing,  for  the  reopening  of  the  case. 

§  880.  In  proceedings  in  rem  with  general  notice,  the  de- 
fault is  "against  all  persons"  (since  all  have  been  tendered 
their  opportunity  to  claim),  and  upon  confirmation  the  judg- 
ment is  final;  for  the  res  is  in  court,  whoever  may  be  the 
owner.  In  such  proceedings  with  limited  notice,  only  the 
notified  ma}'  be  defaulted ;  and  if  the  limitation  is  to  one  (the 
owner  of  attached  property  for  instance),  he  alone  can  be  de- 
faulted. The  usual  formula  in  the  former  case  is:  "  The  delay 
allowed  by  law  having  expired  and  no  claim  or  defense  hav- 
ing been  filed,  it  is  hereby  ordered  that  all  persons  having  any 
right,  title  or  interest  in  or  to  the  property  seized  herein  be 
pronounced  in  contumacy  and  default,  and  the  libel  adjudged 
and  taken  pro  confessoP  If  any  person  or  persons  have  ap- 
peared, the}^  are  excepted  from  the  order,  and  all  others  held 
in  default.  Such  form  would  be  inapplicable  in  an  attach- 
ment suit,  in  which  nothing  is  proceeded  against  but  the  in- 
terest of  the  debtor  in  the  property  attached.  Default  is 
necessarily  confined  to  hini,  and  whatever  ownership  or  inter- 
est others  may  have  is  not  cut  off  or  affected  by  the  judg- 
ment. 

"When  summons  has  been  returned  unserved  and  property  has 
been  attached  and  no  notice  by  publication  is  made  and  no 
appearance  is  entered,  a  judgment  by  default  is  not  immedi- 
ately allowable:  not  till  notice.  Who  is  in  default?  If  neither 
cited  or  notified,  the  debtor  is  not  in  default  for  non-appear- 
ance. He  cannot  be  in  contumacy  for  not  obeying  a  summons 
never  served;  not  heeding  an  invitation  never  extended. 

1  Default  is  not  to  be  taken  on  the  it  be  "  appearance  day."  Martin  v. 
second  day  of  term  in  Texas,  though    Hartnett  (Tex.),  24  S.  W.  963. 

2  Havens  v.  Gard,  131  Ind.  533. 


§§  881,  882.]  JUDGMENT  NISI.  599 

II.  Judgment  !N'isi. 

§881.  Custom  of  London. —  The  custom  of  London  allows 
judgment  by  default  after  verbal  proclamation  repeated  on 
successive  court  days;  the  defendant,  not  responding  to  the 
oral  call,  may  be  defaulted.  But  that  custom  never  allowed 
final  judgment  under  such  circumstances.  The  case  was  open 
for  a  year  and  a  day  within  which  the  defendant  might  ap- 
pear, enter  bail  and  plead.  The  creditor  could  not  obtain 
attached  propert}^  from  the  court  for  sale  without  giving  secu- 
rity to  protect  the  owning  absentee,  or  presenting  pledges 
to  restore.  Pledgors  entered  into  recognizance  to  pay  the 
owner  so  as  to  make  good  his  wrongs  in  case  the  judgment 
should  be  set  aside.  And  such  of  our  own  states  as  allow  like 
default  and  sale  without  service  or  notification,  still  require 
that  the  plaintiff  should  give  security  so  as  to  protect  the  de- 
fendant should  he  appear  within  a  j^ear.  At  the  expiration 
of  the  time  the  judgment  is  deemed  final.  Such  practice, 
though  seemingly  amounting  to  the  taking  of  one's  property 
without  due  course  of  law,  was  in  full  exercise  when  the  con- 
stitution of  the  United  States  was  adopted.  It  may  be  plausi- 
bly and  perhaps  satisfactorily  argued  that  the  f ramers  of  that 
instrument  did  not  design  to  inhibit  such  procedure.  That 
was  one  of  the  ways  in  which  law  was  then  administered  in 
courts  of  justice;  and,  ever  since,  it  has  been  thus  adminis- 
tered in  some  of  the  states  in  cases  of  foreign  attachment; 
and,  in  one  or  two,  even  in  domestic  attachment. 

§  882.  Practice  in  Pennsylvania.—  In  Pennsylvania,  at- 
tached property  of  a  debtor,  who  absconds  or  conceals  himself 
to  defraud  creditors,  is  delivered  to  three  trustees,  appointed 
by  the  court,  who  notify,  by  publication,  all  debtors  of  the 
defendant  and  all  holders  of  his  property  to  pay  or  deliver  to 
them;  and  all  his  creditors  to  present  their  claims.  These 
trustees  are  really  judicial  assignees;  the  estate  of  the  attach- 
ment defendant  legally  rests  in  them  for  the  purpose  of  ad- 
ministration; they  sue  in  behalf  of  the  estate  and  for  the 
use  of  the  creditors  in  their  own  names;  they  summon  and 
examine  persons  supposed  to  be  indebted  to  the  defendant; 
they  issue  warrants  for  the  seizure  of  goods  and  chattels,  books, 
papers,  etc.,  and  may  cause  stores,  warehouses,  boxes,  etc.,  to 
be  broken  open  when  that  is  necessary  to  the  execution  of  a 


600  JUDGMENT.  [§  883. 

warrant.  They  take  charge  of  the  real  property  of  the  debtor 
when  vested  in  them  in  like  manner;  sell  and  dispose  of  it  as 
administrators;  redeem  mortgaged  property  when  necessary; 
and  finally  adjust  the  several  claims  of  the  creditors  after 
having  accorded  a  hearing  to  those  who  have  appeared,  and 
then  file  their  report  in  the  office  of  the  prothonotary.  Ex- 
ceptions to  the  report  may  be  filed  for  the  consideration  of 
the  court.  If  none  are  filed,  the  trustees  distribute  the  fund 
derived  from  the  estate  of  the  debtor  among  those  who  have 
established  their  claims  b}'^  proof,  without  preference.  There 
is  preference  given  to  the  first  attacher  when  the  process  is 
under  the  statutes  governing  foreign  attachment,  which  is 
quite  different  in  this  state  from  domestic.  The  method  above 
described  is  not  exclusive.  In  Delaware,  domestic  attachment 
has  many  of  the  features  which  distinguish  it  in  Pennsylvania. 

§  883.  In  New  Jersey. —  In  Xew  Jersey,  the  proceeding  is 
similar  to  that  of  the  two  states  above  mentioned.  The  court 
appoints  an  auditor  to  examine  all  claims,  adjust  and  report 
upon  them.  His  powers  much  resemble  those  of  the  trustees 
appointed  in  Pennsylvania.  The  auditors  issue  citations,  war- 
rants, etc.. ;  examine  witnesses  and  interrogate  persons  sup- 
posed to  be  cognizant  of  the  affairs  of  the  defendant;  investi- 
gate supposed  fraudulent  transactions;  cause  the  seizure  of 
unsurrendered  property,  and  effect  it  by  breaking  into  stores, 
warehouses,  boxes,  etc.,  when  necessary;  bring  suits,  under 
certain  restrictions;  sell  the  property  of  the  defendant,  in- 
cluding land ;  and  distribute  the  proceeds  among  the  creditors 
in  dividends  proportionate  to  their  established  demands.  If 
the  sale  is  not  by  the  auditor  under  the  attachment,  the  pur- 
chaser's title  is  subject  to  liens  created  between  the  attach- 
ment and  the  judgment.  In  other  words,  attached  land,  sold 
on  execution  of  a  personal  judgment  against  a  defendant  who 
has  apjieared,  does  not  bear  lien  from  the  date  of  the  attach- 
ment but  from  the  entry  of  the  judgment.  Aliter  if  the  sale 
is  by  an  auditor  under  the  attachment.^ 

The  judgment  nisi  does  not  preclude  the  absent  defendant 
from  entering  within  a  year  and  suing  those  who  have  re- 
ceived dividends,  as  creditors  under  the  award  of  the  auditors, 

iBlatchford  v.  Conover,  40  N.  J.  ruling  Conover  v.  Becket,  38  N.  J. 
Bj.  205  (Parker,  J.,  dissenting),  over-     Eq.  8S4. 


§  884.1  JUDGMENT   NISI.  601 

for  restoration.  His  action  will  lie  if  the  attachment  was  un- 
authorized by  law,  or  if  the  grounds  laid  did  not  bring  the 
case  under  the  statute,  or  if  the  cause  of  action  was  false  — 
that  is,  if  the  alleged  debt  was  not  due  and  owing;  and  he 
may  recover  as  damages  the  amount  received  by  the  attach- 
ment plaintiffs  and  such  costs  and  expenses  as  have  been  paid 
out  of  the  proceeds  of  his  property.^ 

The  report  of  the  auditor  is  not  in  itself  conclusive;  it  re- 
quires confirmation  by  judgment;  and  the  court,  because  of 
mistakes  of  law%  may  refuse  to  enter  judgment,  and  may  refer 
the  matter  back  to  him.-  There  is  not  confirmation  in  the 
sense  that  makes  the  award  final,  as  in  ordinary  confirmation 
of  default. 

§  884.  In  some  other  states. —  The  practice  in  Virginia  and 
Maryland  has  been  similar  to  that  of  the  states  above  men- 
tioned with  respect  to  the  judgment  nisi,  though  now  modified 
in  some  respects. 

Judgment  nisi  in  foreign  attachment,  under  which  the  at- 
taching creditor  sells  the  res  without  final  decree  against  it, 
was  guarded  under  a  former  statute  by  the  requirement  of  a 
bond  from  the  plaintiff  to  restore  the  proceeds  upon  the  dis- 
proval  of  the  debt  within  the  usual  delay.  The  bond  might 
be  to  "  perform  future  orders,"  etc. ; '  but  in  Maryland,  under 
this  practice,  it  was  held  that  securit}^  to  the  non-resident  de- 
fendant was  not  necessary  when  a  year  and  a  day  had  already 
elapsed  since  the  issue  of  the  attachment;*  and,  when  that 
period  had  not  transpired,  motion  for  judgment  of  condemna- 
tion was  there  allowed  prior  to  filing  a  bond  to  restore  as  re- 
quired by  the  act  of  1715.^  A  judgment  of  condemnation  on 
an  attachment  and  possession  delivered  under  a  liberate  vests 
the  legal  title. ^  Though  the  legal  delay  of  six  months,  re- 
quired by  the  statute,  had  not  elapsed  after  seizure  and  before 
judgment,  it  was  held  in  Tennessee  that  title  was  conveyed 
by  the  sale  of  real  estate  pursuant  to  the  judgment  against  a 

1  Schenck  v.  Griffin,  38  N.  J.  L.  462.        <  Wallace  v.  Forest,  2  Har.  &  M. 

2  Berry  v.  Callet,  6  N.  J.  L.  179.         (Md.)  261. 

SBrien  v.  Pitman,  12  Leigh  (Va.),        *  Dawson  v,  Contee,  22  Md.  27. 
379;  Watts  v.  Robertson,  4  H.  &  M.        6  piater  v.  Hepburn,  3  Har.  &  M. 
442.  434. 


602  JUDGMENT.  [§§  885,  886. 

non-resident,  notwithstanding  the  irregularity  and  reversibil- 
ity of  such  judgment.^ 

§  885.  In  Mississippi,  under  the  provision  of  the  code  of 
1871,  section  1479,  the  attaching  creditor  could  not  sell  the 
attached  property  of  the  absent  and  non-appearing  debtor 
unless  he  gave  a  bond  to  restore  in  case  the  latter  should  ap- 
pear within  "a  year  and  a  day  "  and  disprove  the  debt.  Any 
sale  there,  without  such  security  to  protect  the  debtor,  was 
not  voidable  merely'  but  absolutely  void.^ 

By  the  Tennessee  code,  sections  3527,  3528,  a  judgment 
against  an  attachment  defendant,  not  a  resident,  not  served 
and  not  appearing,  must  include  what  is  called  a  "stay  order," 
to  protect  him;^  and  such  judgment,  without  this  essential, 
is  absolutely  void  if  there  has  been ^ no  publication  notice.* 
The  reason  for  the  requirement  of  such  stay  order  is  that  the 
judgment  is  not  final  until  matured  by  prescription.  And  it 
cannot  be  matured  if  jurisdictionless. 

By  the  Virginia  code  of  1873  (ch.  148,  §  24),  bond  is  required 
of  the  attaching  creditor  before  he  can  sell  to  secure  the  non- 
resident debtor  who  has  not  been  served  and  has  not  appeared.-^ 
And  it  is  there  held  that  a  judgment  against  a  non-appearer 
can  have  no  effect  as  a  personal  decree  in  another  state.^  No 
judgment  lacking  finality  is  recognizable  beyond  the  state 
jurisdiction  in  which  it  was  rendered. 

§  886.  The  judgment  is  not  final,  in  Wisconsin,  Minnesota  and 
Nebraska,  when  the  debtor  has  been  neither  served  nor  actu- 
ally notified  (though  there  has  been  publication  notice),  until 
the  expiration  of  a  legal  delay  within  which  he  may  appear 
and  set  aside  the  judgment  upon  proper  showing.'  In  Iowa 
there  is  a  like  provision;^  and  in  other  states,  some  of  which 

1  Porter  v.  Partee,  7  Humph.  168.  sin,  within  three,  etc.     See  Berry  v. 

2  Hiller  V.  Lamkin,  54  Miss.  14.  Nelson,  4  Wis.  373;  Berry  u.  Doty,  5 

3  MuUoy  V.  White,  3  Tenn.  Ch.  9.  id.  605. 

4  Railroad  v.  Todd,  11  Heisk.  549.  8  Bond  v.  Epley,  48  la.  606,  citing 

5  Anderson  v,  Johnson,  33  Gratt.  section  2877  of  the  code,  providing 
558.  that  such  debtor  might  appear  within 

6  Fisher  v.  Marsh,  26  Gratt.  765.         ten  years  after  the  rendition  of  the 
■Savage   v.    Aiken,  21   Neb.    605.     judgment,   give    security  for  costs 

In  Nebraska,  the  debtor  may  thus    and  defend  the  suit, 
appear  within  five  years ;  in  Wiscon- 


§§  887,  SSS.]  FINAL   JUDGMENT.  603 

have  been  already  particularized.  la  Arkansas  the  debtor 
may  redeem  his  property  sold  under  attachment  within  twelve 
months.^ 

III.  Final  Judgment. 

§  887.  Ees  judicata. —  To  render  a  judgment  against  a  thing 
or  a  person  conclusive,  so  as  to  prevent  collateral  attack,  it  is 
essential  that  there  should  be  notice.  In  Hassall  v.  Wilcox,^ 
a  proceeding  to  enforce  a  statutory  lien  against  a  railroad 
was  brought  under  review.  The  court  said:  ""We  do  not 
think  that  the  proceeding  in  the  state  court  can  be  sustained 
as  one  w  rem.  It  is  essential  to  such  a  proceeding  that  there 
should  at  least  be  constructive  notice,  by  some  form  of  publi- 
cation or  advertisement,  to  advise  claimants  to  appear  and 
maintain  their  rights,  before  a  judgment  in  such  a  proceeding 
can  operate  even  as  p?'ima  facie  evidence."  The  court  cited 
Windsor  v.  McVeigh,^  and  held  the  decree  open  to  collateral 
attack  for  want  of  notice.  These  cases  are  later  than  Cooper 
V.  Keynolds,*  which  sustained  prior  rulings  that  seizure  was 
notice  "served  on  the  thing  itself,"  and  sufficient  to  support 
jurisdiction.    . 

§  888.  In  Guaranty  Trust  Co.  v.  Green  Cove  Kailroad  ^  the 
court  approvingly  quotes  the  following  from  Galpin  v.  Page:  ® 
"Every  principle  of  justice  exacts  a  strict  and  literal  compli- 
ance with  the  statutory  provisions;"  and  the  court  (in  the 
Guaranty  Trust  Co.  case)  adds:  "Later  cases  to  the  same 
effect  are  Earle  v.  McYeigh,  91  U.  S.  503;  Settlemier  v.  Sulli- 
van, 97  id.  4J:4;  Cheely  v.  Cla3'ton,  110  id.  701;  Applegate  v. 
Lexington,  etc.  Mining  Co.,  117  id.  225;  and  there  is  scarcely 
a  state  in  the  Union  in  which  the  same  principle  has  not  been 
announced  and  re-affirmed." 

Though  this  case  and  those  cited  in  the  quotation  from  it 
were  not  against  property,  they  serve  to  show  the  essentiality 
of  statutory  notice  to  render  judgments  conclusive.  In  Has- 
sall V.  Wilcox,  supra.,  notice  was  held  essential  in  a  proceed- 
ing against  property  when  there  was  no  provision  of  statute 

1  Beard  v.  Wilson,   52  Ark.  290.        3  93  u.  S.  274,  278-9. 
See  Ward    v.    Carlton,   26    id.  862;        MO  Wall.  308. 
Holliday  v.  Cohen,  34  id.  713.  s  139  u.  S.  145-8. 

2  130  U.  S.  493.  6  18  Wall.  368-9. 


COi  JUDGMENT.  [§§  8S9,  890. 

requiring  it.  Almost  all  the  decisions  contra  to  this,  rendered 
since  the  10th  of  Wallace,  follow  the  Cooper  case,  and  hold 
that  mere  attaching  gives  power  to  decide  (even  though  the 
statute  expressly  require  notice),  so  that  the  judgment  cannot 
be  attacked  collaterally  b}^  the  defendant.  The  supreme  court 
of  Texas  ^  has  recently  departed  from  a  line  of  decisions 
avowedly  to  follow  the  Cooper  case  and  Densmore  v.  Mat- 
thews.- 

§  889,  Judgment  for  plaintiff  after  issue  joined  is  comjjiete 
as  a  personal  one,  and  may  be  executed  against  an}"-  property 
of  the  defendant  not  exempt  bylaw;  and  therefore  there  is 
no  need  to  enlarge  upon  it  in  a  work  on  attachment.  It  is 
like  other  personal  judgments.^ 

§  890.  Order  of  judgment —  The  general  practice  is  to  try 
the  attachment  upon  traverse  before  the  trial  of  the  principal 
cause;  but  if  the  order  is  reversed,  and  there  is  judgment 
rendered  for  the  plaintiff  on  the  debt  demand,  the  ancillary 
suit  may  be  heard  afterwards  —  the  officer  meanwhile  retain- 
ing the  custody  of  the  resJ^  But  if  the  judgment  is  for  the 
defendant  on  the  debt  demand  when  that  is  tried  first,  he 
is  entitled  to  have  his  attached  property  released  without 
further  inquir3^^  When  the  debt  is  not  due,  there  should  be 
an  order  for  stay  of  execution  till  maturit}''  before  the  rendi- 
tion of  a  judgment  on  the  attachment  process;^  or  there 
should  be  no  decree  till  the  debt  becomes  due.'^ 

The  judgment  necessarily  follows  the  pleadings  and  the 
issue  joined.  A  defendant  may,  at  the  same  time,  traverse 
the  affidavit  and  plead  to  the  petition.  The  two  defenses  are 
perfectly  consistent:  the  first  going  to  the  writ  and  the  second 
to  the  declaration.^  The  two  suits  ma}"-  not  be  against  pre- 
cisely the  same  defendants;  for  the  principal,  personal  one 
may  be  against  a  firm,  and  the  ancillary  action  may  be  against 

1  Barelli    v.    Wagner    (Tex.    Civ.  Lutterloh  v.  Mcllhenny,  74  Tex.  73 : 

App.),  27  S.  W.  16.  Marks  v.  Abramson,  53  id.  264. 

'•i  109  U.  S.  216.  4  Main  v.  Bell,  38  Wis.  544. 

3  An  attachment  lien  should  not        ^  Cramer  v.  White,  29  la.  336.     So 

be  enforced  against  the  defendant's  also  if  it   is    a    nonsuit.     Bates  v. 

property  under  a  judgment  rendered  Jenkins,  1  111.  25. 
on  a  claim  or  cause  of  action  which        ^  Berry  v.  Anderson,  3  Miss.  649 
was  not  the  basis  of  the  attachment.        "^  Ware  v.  Todd,  1  Ala.  199. 

^  Parker  v.  Brady,  56  Ga.  372. 


§§  S91,  S92.J  FINAL   JUDGMENT.  COo 

a  member  of  it;  and,  though  no  lien  could  thus  be  acqu^red 
upon  the  property  of  the  firm,  that  would  bo  no  reason  for 
dismissing  the  attachment.^  A  plaintiff  who  has  sued  in  as- 
sumpsit may  afterwards  sue  in  attachment  on  the  same  de- 
mand.    The  two  remedies  are  not  inconsistent.^ 

There  may  be  judgment  against  the  attached  assets  of  a 
partnership,  after  a  member  of  the  firm  has  been  discharged 
from  all  personal  liability  for  the  partnership  debt.  Such 
member  has  no  separate  interest  in  the  assets  till  the  firm's 
debts  have  been  paid.^  Though  a  creditor  discharged  a  part- 
ner from  all  claim  in  one  state,  he  afterwards  proceeded  by 
attachment  in  another,  against  the  firm's  property,  and  recov- 
ered the  whole  debt.^ 

§  891.  Af/ainstmore  than  one  (Icfendant. —  When  a  creditor 
had  instituted  an  attachment  suit  ao-ainst  three  alleged  debt- 
ors,  had  obtained  personal  judgment  against  one  of  them  and 
a  judgment  against  the  attached  property  belonging  to  all, 
and  was  attempting  to  enforce  the  personal  decree  against 
the  two  whom  it  did  not  affect,  it  was  held  that  neither  of  the 
judgments  was  evidence  against  them  of  the  amount  claimed 
to  be  due.  The  first  was  held  to  be  i7i  personam;  the  second, 
in  rem!'  The  latter  is  no  evidence  of  debt.®  Thouo-h  a  iudo-- 
ment  vacating  attachment  is  not  a  decision  on  the  merits  of 
the  personal  suit  when  the  defendant  is  in  court,^  it  would  end 
such  a  proceeding  wholly  in  rem. 

When  attachment  has  been  sued  out  in  a  suit  against  two 
persons,  it  may  be  sustained  against  one  and  vacated  as  to 
the  other.^  A  judgment  against  one  of  two  partners  on  a 
debt  of  the  partnership  is  held  good,  if  all  the  assets  of  the  firm 
have  devolved  on  him  —  the  other  member  having  absconded.^ 

§  892.  Confined  to  the  res. —  When  there  is  judgment  with- 
out service  on  the  debtor  and  without  his  a]>pearance  —  after 
publication  —  and  the  property  on  which  it  operates  proves 

1  Buckingham  v.  Svvezy,  61  How.  5  Convvell  v.  Thompson,  50  111.  329. 

Pr.  266.  e  Manchester  v.  McKee,  9  111.  511; 

2Swartz  V.   Lawrence,    12  Phila.  Jackson's  Appeal,  2  Grant  (Pa.),  407; 

181  (Pa.  Act  of  March  17,  1869).  White  v.  Floyd,  Spear's  Eq.  (S.  C.) 

3  Murray  V.  Muinford,  6  Cow.  441;  311. 

Canfield  v.  Hard,  6  Ct.  ISO;  Rice  v.  '^Stapleton  v.  Orr.  48  Kan.  170. 

McMartin,  39  id.  573.  8  Allen  v.  Clayton,  3  McCrary,  517. 

*  Rice  V.  McMartin,  39  Ct.  573.  STlioinas  v.  Brown,  67  Mil.  512. 


606  JUDGMENT.  [^  S93. 

insufficient  to  satisfy  the  debt  upon  which  judgment  is  given, 
the  unpaid  balance  may  be  made  the  cause  of  action  in  an- 
other suit;  for  it  is  as  though  no  judgment  whatever  had  been 
rendered  respecting  it.  To  such  second  suit  the  debtor  may 
plead  anything  that  he  could  have  set  up  had  he  appeared  in 
the  first,  but  he  cannot  set  up  the  attachment  judgment  as  a  bar 
to  the  suit  for  the  unsatisfied  balance.^  It  is  not  error  to  ren- 
der judgment  to  the  full  amount  of  the  debt  alleged  in  the 
petition  and  affidavit  (though  it  is  inoperative  so  far  as  it  ex- 
ceeds the  value  of  the  res),  for  the  court  cannot  know  the 
precise  value  of  it  at  the  time  the  decree  is  rendered;  but  it 
has  been  held  that  if  the  judgment  exceeds  the  amount  claimed 
and  set  forth  in  the  notice,  it  is  fatally  erroneous  in  a  suit 
bearing  only  on  property.^  The  judgment,  where  valid,  binds 
the  res  only,  though  personal  in  form.' 

"When  the  plaintiff  has  been  nonsuited  and  the  lien  dis- 
lodged, it  is  held  that  it  is  not  restored  by  an  order  setting 
the  nonsuit  aside.*  ITor  when  he  has  dismissed  voluntarily, 
and  then  has  had  his  case  reinstated  on  motion;^  but  if  the 
reinstatement  of  the  case,  after  voluntary  dismissal,  follows 
soon  after  the  vacation  of  the  order  to  dismiss,  it  is  held  in 
Missouri  that  the  lien  is  not  lost.** 

TV.  Perfecting  the  Lien. 

§  893.  Hoiv  the  lien  is  ailjudcjed. —  Judgment  in  attachment 
suits  is  usually  attended  by  the  addition:  "With  privilege  on 
the  property  attached,"  and  not  necessarily  any  further  de- 
scription of  the  property.^  This,  or  equivalent  words,  is  a 
judicial  recognition  of  the  attachment  lien ;  a  perfection  of  the 

1  Bliss  V.  Heasty,  61  111.  338.  6  Jaffray  v.  Claflin  (IMo.),  24  S.  W. 

'-'Forsyth    v.    Warren,   62  111.   68;  761. 

Hobson   V.    Emporium    Co.,    42  id.  ^  Gerdes    v    Sears,    13   Oreg.  358. 

306;  Hichins  v.    Lyon,    35   id.    150;  The     words    in    a    verdict     "said 

Rowley  v.  Berrian,  12  id.  202.  amount  being  secured  by  an  attach- 

3  Parsons  v.  Paine,  26  Ark.  124;  ment  lien  on  land,"  authorized  judg- 
Banta  v.  Wood,  32  la.  469;  Doolittle  ment  with  privilege.  Merrielles  v. 
V.  Shelton,  1  Greene  (la.),  273;  Bates  Bank  (Tex.  App.),  24  S.  W.  24.  It 
V.  Delavan,  5  Paige,  299 ;  White  v.  has  been  held  in  Texas,  however, 
Floyd,  Spear's  Eq.  (S.  C.)  351.  that  the  verdict  need  not  mention 

4  Brown  %i  Harris,  2  la.  505.  the  lien.     Pitkins  v.  Johnson  (Tex.), 

5  Murphy  v.  Crew,  38  Ga.  139.  2  S.  W.  459. 


§  S9J:.]  PEKFECTING    THE    LIEN.  607 

previously  incipient  right.  It  is  a  judgment  against  the  prop- 
erty; a  judicial  finding  that  it  is  an  indebted  thing,  and  a 
virtual  condemnation  of  it  to  pay  its  owner's  debt.  Whether 
such  decree  is  made  by  the  insertion  of  the  clause  above 
quoted  or  its  equivalent,  or  is  made  by  implication  only  in 
the  persona]  judgment,  or  is  rendered  formally  in  an  ancil- 
lary proceeding  conducted  separately  from  the  principal,  the 
effect  is  the  same.  Implication  is  recognized  in  some  of  the 
states  and  not  in  others;  but,  where  it  is  recognized,  the  lien 
IS  perfected  as  well  as  if  the  privilege  were  expressly  decreed 
in  the  judgment.'     The  jurj'  may  render  a  general  verdict.- 

The  implication  does  not  exist  if  the  attachment  has  been 
terminated  during  the  proceedings,  or  if  there  is  anything  in 
the  final  decree  showing  that  the  recognition  of  privilege  on 
the  property  is  not  designed;^  or  if  the  judgment  is  by  con- 
sent, which  is  held  to  be  a  waiver  of  the  attachment  lien.* 

§894.  Bule  in  Missoiwi.— It  was  held,  however,  in  Mis- 
souri that  if  a  general  judgment  is  rendered  after  attaching 
and  publishing,  it  is  not  void  as  to  the  excess  above  the  value 
of  the  res,  but  is  valid  till  reversed;  that  it  will  authorize  a 
special  execution  against  the  property  attached  and  will  bind 
no  other  property  of  the  defendant;  and  that  the  form  of  the 
judgment  may  be  corrected  by  an  entry  nunc  jjro  tunc? 
There  should  be  a  recognition  of  the  privilege;  and  that 
would  be  effected  if  special  execution  on  the  property  attached 
be  awarded  in  the  decree.^ 

It  is  also  held  in  Missouri  that  if  there  has  been  a  general 
appearance  of  the  defendant  in  the  case,  the  judgment  should 
be  general  —  not  special  against  the  property  attached.''    It  is 

1  Anderson  v.  Goflf.  72  Cal.  65 ;  Sale  <  Gilbert  v.  Gilbert,  33   Mo.  App. 

r.  French,  61  Miss.  170;  Betancourt  259. 

V.  Eberlin,  71  Ala.  461,  467 :  Coleman  5  Massey  v.  Scott,  49  Mo.  278. 

r.  Waters,  13  W.  Va.  278;  Young  u.  6  Johnson  v.  Holley,  27  Mo.  594. 

Campbell,   5  Gilman,  80;  Waynant  See  Han na  v.  Davis,  112  id.  599. 

V.   Dodson,  12  la.  22.     And  so  for-  'Maupin  v.  Va.  Lead  Mining  Co., 

merly  in  Texas.     Cook  v.  Love,  33  78  Mo.    24;  Borum   r.  Reed,  73  id. 

Tex.  487;  Wallace  v.  Bogel,  66  id.  461;  Philips  r.   Stewart,  69  id.  149; 

572.     But  the  rule  was  changed  by  Huxley  v.  Harrold,  62  id.  516;  Jones 

Revised  Statutes,  article  180.  v.  Hart,  60  id.  351.     See  Kenrick  v. 

^Shahan  v.  Tallman,  39  Kan.  185.  Hutf,  71    id.  570,   in  which  an    at- 

3  Wasson  v.  Cone,  86  111.  46;  Love  tached  fund  was  lost  by  the  insolv- 

V.  Voorhies,  13  La.  Ann.  549.  ency  of  the  officer  and  his  sureties. 


G08  JUDGMENT.  [§  895. 

held  there  that  under  such  judgment  the  attached  property 
need  not  necessarily  be  sold ;  that  if  there  is  other  property 
sufficient  to  satisfy  the  execution,  the  defendant  may  surrender 
it  and  retain  the  attached  property  if  he  chooses  to  do  so.^  It 
is  true,  not  only  in  that  state  but  in  every  other,  that  if  the 
defendant  has  appeared,  the  personal  judgment  against  him  is 
a  general  one,  which  ma}'  be  executed  against  any  property  of 
his,  and  that  he  may  point  out  what  he  prefers  to  have  exe- 
cuted if  the  plaintiff  does  not  insist  upon  having  his  lien  vin- 
dicated against  the  property  attached.  The  satisfaction  of 
the  judgment  in  any  way  would  relieve  the  attached  property 
of  the  lien.  But  it  is  not  true  that  an  attachment  judgment 
bears  upon  all  the  defendant's  property  alike,  because  of  his 
personal  appearance  in  the  case.  The  recognition  of  the  at- 
taching creditor's  privilege  upon  the  propertj?-  attached  is 
seen  to  be  all-important  when  there  are  rival  attachers,  and 
several  judgments  against  the  defendant,  as  the  attacher  who 
holds  the  oldest  lien,  matured  by  judgment,  has  priority  over 
his  competitors  in  executing  the  particular  property  on  which 
his  lien  rests.  It  is  as  important  a  privilege  to  him  as  the 
right  to  foreclose  a  mortgage  on  hypothecated  property  is  to 
the  raortgaoree. 

§  895.  Personal  judgment  sliould  he  general. —  Doubtless 
the  personal  judgment  against  the  defendant  who  has  ap- 
peared, or  who  has  been  served  with  summons,  should  be  gen- 
eral in  Missouri  and  in  ever}'  state,  so  as  to  be  operative  on 
any  property  of  his;  but  it  is  also  undoubtedly  true  that  the 
hypothetical  lien  created  on  the  thing  attached  should  be 
recognized,  expressly  or  impliedly,  in  the  judgment,  and  thus 
converted  to  a  specific  lien  as  sacred  as  a  mortgage,  so  that 
the  judgment  creditor  can  make  his  money  out  of  the  execu- 
tion and  sale  of  that  thing  to  the  exclusion  of  other  creditors. 
Should  such  lien-bearing  property  prove  insufficient  to  satisfy 
the  judgment,  other  property  may  be  executed  under  the  per- 
sonal judgment;  and,  when  that  becomes  necessary,  the  de- 
fendant may  point  out  property  to  the  sheriff  as  in  any  ordi- 
dary  suit.  Or  the  judgment  creditor  may  voluntarily  abandon 
his  lien  and  make  his  money  out  of  any  property. 

iKritzer  v.  Smith,  21  Mo.  296;  Jones  v.  Hart,  60  id.  351. 


PERFECTING    THE    LIEN.  G09 

§  896.  Where  there  is  but  one  attachment  suit  against  the 
defendant,  and  judgment  has  been  rendered  against  him  after 
service  or  general  appearance,  it  would  work  no  w^rong  to  the 
plaintiff  should  other  propert}""  than  that  attached  be  pointed 
out  and  the  judgment  satisfied  out  of  the  proceeds  of  the 
sale;  but,  until  it  has  been  thus  satisfied,  the  lien  upon  the 
attached  property  remains  inviolate.  When  satisfied,  the  lien 
disappears  just  as  a  mortgage  or  any  specific  lien  whatever 
would  be  removed  by  payment  of  the  debt  which  the  lien  ex- 
isted to  secure. 

Because  the  appearance  of  the  defendant  makes  him  amen- 
able to  the  rendition  of  a  personal  judgment  against  him,  it 
does  not  follow  that  there  can  be  oyily  a  personal  judgment. 
If  the  attaching  were  only  to  "bring  him  into  court  by  his 
property,"  to  "compel  appearance,"  etc.,  and  were  without 
any  other  significance,  it  would  logically  follow  that  personal 
appearance  would  dissolve  it,  so  that  no  lien  could  be  matured 
by  judgment;  but  attaching  is  not  thus  confined  in  its  func- 
tions now,  as  it  is  understood  in  most  of  the  states. 

§  897.  Effect  on  the  l)ond. —  When  the  decree  is  neither  ex- 
pressly nor  impliedly  confirmatory  of  the  attachment  lien,  it 
can  have  no  reference  to,  or  bearing  upon,  the  forthcoming 
bond,  if  one  has  been  executed  by  the  defendant;  and  the 
money  due  by  such  judgment  cannot  be  made  by  a  suit  on 
that  bond.  For  the  duty  assumed  by  the  obligors  is  to  restore 
the  attached  property  should  the  attachment  be  sustained  by 
the  judgment.  Such  bond  does  not  dissolve  attachment,^  but 
a  judgment  for  the  plaintiff  which  denies  him  the  lien  does 
dissolve  the  attachment  as  effectually  as  if  the  judgment  were 
for  the  defendant.  The  forthcoming  bond  is  thus  canceled 
just  as  unbonded  attached  property  is  thus  released.- 

§  89S.  When  the  lien  hccomes  perfected.—  The  importance 
of  the  judicial  recognition  of  the  privilege  is  seen  from  the 
fact  that  the  lien  can  only  be   perfected  by  the  judgment, 

iDunn  V.  Crocker,  23  Ind.  324;  10  Pet.  400;  Kirk  v.  Morris,  40  Ala. 
Gass  V.  Williams,  46  id.  2o3;  Jager  225;  Woolfolk  v.  Ingram,  53  id.  11. 
V.  Stalling,  30  id.  341 ;  Bell  v.  West-  -  St-ate  v.  Manly,  15  Ind.  8 ;  Foster 
em,  etc.  Co.,  3  Met.  (Ky.)  559;  Hard-  v.  Dryfus,  16  id.  158;  Moore  v.  Jack- 
castle  V.  Hickman,  26  Mo.  475;  Jones  son,  35  id.  360;  McCoUem  v.  White, 
V.  Jones,  38  id.  429 ;  Hag-an  v.  Lucas,  23   id.  43 ;  Perkins  v.   Bragg,  29  id. 


507. 


39 


610  JUDGMENT-  [§  899. 

which  has  relation  back  to  the  levy.*  Before  maturity  by 
judgment,  the  attaching  creditor  cannot  assert  his  lien  by  an 
action  to  set  aside  an  alleged  fraudulent  conve3'ance  by  the 
defendant.^  It  is,  from  the  moment  of  confirmation  by  judg- 
ment, fully  entitled  to  the  weight  of  a  perfect  lien  from  the 
date  of  its  creation  as  a  hj^pothetical  lien.^  In  a  contest  for 
priority  with  other  perfect  liens,  such  as  mortgages,  it  now  is 
entitled  to  £is  much  consideration.as  if  it  had  been  convention- 
ally created. 

§  899.  When  lien  is  not  recognised  expressly  or  hy  implica- 
tion.—  On  the  other  hand,  should  there  be  judgment  rendered 
airainst  the  defendant  without  recognition  of  the  lien  and 
privilege  upon  the  property  attached;  if  the  judgment  should 
be  such  as  to  give  the  plaintiff  no  exclusive  privilege  to  execute 
the  attached  property,  but  should  leave  such  property  equally 
subject  to  execution  by  any  other  judgment  creditor,  the  lien 
would  be  lost,  and  would  be  rendered  abortive  ah  initio*  But 
in  determining  whether  a  judgment  recognizes  the  attaching 
creditor's  privilege  on  the  property  attachad  and  completes 
his  lien,  we  must  not  confine  ourselves  to  the  mere  verbiage 
of  the  decree,  but  to  the  meaning  as  understood  in  connection 
with  the  general  practice  of  the  state  in  which  the  judgment 
is  rendered.  Though  purely  personal  in  form,  the  decree  may 
be  operative  against  property  in  vindication  of  the  attachment 
lien:  as  previously  remarked,  the  judicial  recognition  of  the 
lien  may  be  understood.  It  is  not  deemed  necessary  to  the 
maintenance  of  the  lien,  in  several  of  the  states,  that  its  recog- 
nition should  be  written  in  the  decree. 

It  has  been  said  that  the  attachment  lien  is  merged  in  the 
judgment  lien.  There  is,  however  this  difference:  it  is  spe- 
cific while  the  lien  of  the  judgment,  irrespective  of  it,  is  gen- 
eral.    Priority  secured   by  attachment  is  not  lost  by  merger 

1  Scarborough  v.  Malone,  67  Ala.  -  Tennant  v.  Battey,  18  Kan.  324. 

570;  Tennant  1?.  Battey,  18  Kan.  324;  ^Liebman  u.  Ashbacker,   36  Ohio 

Coffin  V.   Ray,.l   Met.  (Mass.)  212;  St.  94:  Riley  v.  Nance  (Cal.),  31  P. 

McMechan  v.  Griffing,  3  Pick.  149;  1126;  Robinson  v.   Thornton  (Cal.), 

Tyrrell's  Heirs  v.    Rountree,  7  Pet.  31  P.  9o6. 

464;     Goodwin    v.    Richardson,    11  ^United  States   Mortgage  Co.    v. 

Mass.  475;  Gushing  v.  Hurd,  4  Pick.  Henderson,  111  Ind.  24. 
253 ;  Van  Loan  v,   Kline,  10  Johns. 
129;  Penney  v.  Little,  3  Scam.  305. 


§§  9U0,  901.] 


PERFECTIXG    THE    LIEN. 


611 


into  the  judgment  lien.  So  it  is  as  important  that  the  lien  be 
legally  maintained  by  the  proceedings  subsequent  to  its  crea- 
tion as  that  the  statute  requirements  creating  it  should  be 
observed  in  the  first  place. 

§  900.  In  Iowa  the  judgment  must  be  formally  in  7'em  when 
there  has  been  publication  but  neither  service  nor  appearance. 
Though  all  the  prior  proceedings  may  have  been  in  conformity 
to  statute,  and  the  property  attached  is  the  same  as  that  sold 
under  the  judgment,  yet  if  the  decree,  following  the  pleadings, 
is  personal  in  form,  it  may  be  collaterally  attacked.^  Though 
all  the  previous  proceedings  in  any  case  may  be  such  as  to 
enable  the  court  to  render  a  formal  judgment  against  the  at- 
tached property,  yet  if  the  decree  is  nominally  against  the 
defendant  it  is  deemed  absolutely  void  in  that  state,  and  a 
purchaser  at  the  sale  is  liable  to  ejectment  at  the  suit  of  the 
attachment  debtor. 

§  901.  In  Indiana  it  is  held  necessar}^  that  the  attachment 
lien  be  recognized  in  the  judgment;  that  this  is  as  important 
as  the  observance  of  the  statutory  requisites  for  the  creation 
of  the  liens ;  that  there  must  be  a  special  judgment  and  special 
execution  to  enforce  the  lien.^     There  are  other  states  than 


1  Smith  V.  Griffin,  59  la.  409,  in 
exposition  of  section  2881  of  the  code, 
providing  that  in  a  proceeding  by 
attachment,  when  the  defendant  has 
not  been  served  with  process,  the 
judgment  should  be  in  rem  only  and 
not  in  personam.  Griffin  had  sued 
Smith,  attached  land,  notified  him 
by  publication,  obtained  judgment, 
and  had  become  the  purchaser  at 
sale.  Smith  sued  to  recover  the 
property,  and  the  court  held  the 
judgment  absolutely  void  because  of 
its  form,  adding:  "  The  court  might 
have  rendered  a  judgment  in  rem 
but  did  not  do  so."  Previous  de- 
cisions are  of  like  import :  Wilkie  v. 
Jones,  Morris,  97;  Doolittle  v,  Shel- 
ton,  1  G.  Greene,  272;  Johnson  v. 
Dodge,  19  la.  107;  Hakes  v.  Shupe, 
27  id.  465;  Lutz  v.  Kelley,  47  id.  307. 

2  Smith  V.  Scott,  86  Ind.  346; 
United  States  Mortgage  Co.  v.  Hen- 


derson, 111  id.  24;  Wright  V. 
Manns,  111  id.  422;  Thomas  v.  John- 
son (Ind.),  36  N.  E.  893;  States.  Mil- 
ler, 63  Ind.  475 ;  Gass  v.  Williams,  46 
id.  253;  The  Excelsior,  etc.  Co.  v. 
Lukens,  38  id.  438;  Lowry  v.  How- 
ard, 35  id.  170;  Moore  v.  Jack- 
son, id.  360;  Perkins  v.  Bragg,  29  id. 
507;  McCollem  v.  White,  23  id.  43; 
Foster  v.  Dryfus,  15  id,  158;  State 
V.  Manly,  16  id.  8;  Willets  v.  Ridg- 
way,  9  id.  367.  Held  in  Lowry  v. 
McGee,  75  id.  508,  that  no  lien  cre- 
ated by  the  issuing  of  an  attachment 
under  the  statute  of  Indiana  on  the 
subject  can  exist  or  have  any  force 
after  judgment  has  been  rendered 
in  a  cause  in  aid  of  which  it  has 
been  issued,  "  unless  there  is  a  spe- 
cial judgment  or  order  of  sale  of  the 
property  attached  and  a  special  exe- 
cution."   2  R.  S.  1876,  p.  Ill,  g  188. 


612  JUDGMENT.  ,  [§  902. 

those  specified  which  hold  the  same  doctrine;  but  the  practice 
in  several  is  to  treat  the  judgment  as  following  the  previous 
proceedings,  which,  hQ\no^  formally  against  a  personal  defend- 
ant (though  ■really  against  his  property  when  he  has  not  ap- 
peared nor  been  served,  but  has  only  been  notified  by  publica- 
tion), may  be  consummated  b}'  a  judgment  personal  in  form. 

When,  however,  there  has  been  judgment  rendered  formally 
against  the  defendant,  with  privilege  upon  the  property  at- 
tached, the  issuing  of  a  general  execution  instead  of  an  order 
for  the  sale  of  the  attached  property  is  not  a  waiver  of  the 
attachment  lien  nor  of  the  priority  acquired  b}'-  attaching.* 
There  would  be  a  waiver,  however,  should  property  that  had 
not  been  primariW  attached  (but  levied  upon  under  the  execu- 
tion for  the  first  time)  be  seized  and  sold  to  the  satisfaction  of 
the  judgment.  Like  any  other  lien, —  like  a  mortgage,  pledge 
or  pawn, —  it  would  die  with  the  debt  which  had  called  it  into 
existence.- 

§  902.  Form. —  There  is  nothing  sacramental  in  the  form  of 
the  judgment  recognizing  the  privilege  upon  attached  prop- 
erty. Total  omission  of  any  mention  of  such  privilege  is  not 
necessarily  a  defeat  of  the  lien  and  a  dissolution  of  the  attach- 
ment. As  above  mentioned,  it  is  not  deemed  essential  to  the 
maintenance  of  the  lien,  in  several  of  the  states,  that  it  be 
formally  recognized.^  The  omission  of  formal  recognition,  in 
states  where  the  law  does  render  express  judgment  against 
property  essential  to  the  maintenance  of  the  lien;  or  the  ex- 
press denial  of  privilege  in  the  judgment,  in  the  other  states, 
would  be  fatal  to  the  attachment,  and  equivalent  to  its  judicial 
dissolution.* 

In  the  case  last  cited,  in  which  was  reviewed  a  judgment 
for  the  defendant  "  subject  to  the  plaintiff's  rights  on  appeal," 
it  is  said  that  though  there  be  no  express  provision  for  con- 
tinuing the  lien  of  attachment  after  judgment  in  the  defend- 

1  liebman  v.  Ashbacker,  36  Ohio  so  held  in  Texas.  Wallace  v.  Bogel, 
St.  94.  66  Tex.  572.     If  the  attachment  is 

2  Parsons  v.  Sprague,  30  Hun,  19.  sustained  and  the  attached  property 

3  State    V.    Eddy,    10    Mont.    311;  executed,  sureties  cannot  complain 
Holliday  v.  Mansker,   44  Mo.  App.  that  there  was  no  special,  express 
465;  Audenreid  v.  Hull,  45  id.  203;  judgment     against     the     property. 
Whitman    Ag.    Ass'n    v.    National,  Thole  v.  Watson,  6  Mo.  App.  591. 
etc.    Ass'n,     id.    90 ;    Hutcheson    v.  *  Meloy  v.  Orton,  42  Fed.  513. 
Powell,  93  Ala.  619.     And  formerly 


§§  903-905.]  APPEAL.  G13 

ant's  favor,  there  is  no  want  of  power  in  the  court  to  continue 
it  during  the  pendenc}'^  of  an  appeal,  if  the  application  be 
made  immediately,  and  bond  given.  The  quoted  phrase  was 
considered  as  meaning  that  the  plaintiff  might  be  entitled  to 
an  order  continuing  his  lien  until  decision  in  the  supreme  court. 

§903.  Order  of  restoration. —  When  the  final  judgment  is 
not  meant  to  have  any  bearing  on  the  attached  property  but 
to  be  entire)}''  personal,  it  ought  not  to  be  silent  on  the  subject 
of  the  attachment:  there  should  be  an  order  of  restoration  in- 
cluded, if  the  property  has  not  already  been  restored  to  the 
defendant  upon  dissolution  of  the  attachment  during  the 
course  of  the  proceedings.^  If,  during  the  progress  of  the 
proceedings,  the  res  has  been  judicially  awarded  to  an  inter- 
venor,  the  attachment  suit  against  the  defendant  is  ended,  and 
only  the  personal  one  can  be  further  prosecuted;  and  the 
whole  case  against  him  is  terminated,  if  he  has  not  been 
served  with  summons  and  has  not  appeared.'-  If  the  final 
judgment  is  for  the  defendant,  there  is  no  need  of  an  order 
quashing  the  attachment.^ 

§  904.  Excess  of  amount. —  A  personal  judgment  exceeding 
in  amount  the  value  of  attached  property  appraised  and 
bonded  *  cannot  be  recovered  in  full  against  the  surety  whose 
obligation  is  limited  to  the  appraisement.  It  was  held  in  Ar- 
kansas" (under  the  proviso  of  her  attachment  statute  that  "  no 
greater  amount  shall  be  recovered  of  the  securities  than  the  ap- 
praised value  of  the  property  seized  by  the  officers  ")  that  the 
court,  on  a  verdict  for  a  greater  amount,  should  render  judg- 
ment against  the  principal  and  sureties  for  the  appraised 
value,  and  against  the  principal  alone  for  the  balance.^  It 
had  been  held  erroneous  to  include  the  surety  with  the  de- 
fendant in  the  attachment  judgment.^ 

Y.  Appeal. 

§905.  Wlio  may  apiyeaJ. —  The  defendant  can  appeal  only 
when  judgment  has  been  rendered  against  him  on  the  mer- 
its;^ but  the  plaintiff  may,  when  a  plea  in  abatement  has 

1  Jackman  v.  Anderson,  33  Ark.  ■»  Calhoun  v.  Stout,  26  111.  App. 
414.  413. 

2  Ireland  v.  Webber,  27  Ind.  256 ;        5  Holmes  v.  Cooper,  27  Ark.  239. 
-Jaffray  v.  Purtell,  66  Ga.  226.  e  Mizell  v.  McDonald,  25  Ark.  38. 

3  Higgins  r.  Grace,  59  Md.  365.  •  Ranft   r.  Young,    21    Nev.    401; 


614  JUDGMENT.  [§§  906,  907. 

been  decided  adversely  to  hira,  in  the  attachment  proceeding, 
though  the  judgment  on  the  merits  of  the  personal  suit  be  in 
his  favor.^  Were  this  right  denied  the  plaintiff,  he  would, 
in  such  case,  be  denied  the  benefit  of  his  attachment  lien 
though  the  judgment  in  the  ancillary  suit  might  be  reversible; 
and  he  would  have  nothing  but  an  ordinary  personal  judg- 
ment. If  the  suit  is  against  a  non-resident  by  publication, 
dissolution  is  a  final  judgment,  when  he  has  not  appealed:  so 
the  plaintiff  may  appeal. 

§  906.  Upon  the  dissolution  of  an  attachment  in  Montana, 
the  plaintiff  may  appeal  and  yet  go  on  in  the  trial  court  with 
the  personal  case  when  the  defendant  is  a  party  in  court,  and 
recover  judgment  and  issue  execution;  and  he  will  not  thus 
waive  his  attachment  lien.-  Should  he  succeed  in  the  appeal, 
his  lien  may  avail  him  in  a  contest  with  rival  creditors;  but 
should  he  make  his  money  on  execution,  his  judgment  would 
be  satisfied  so  that  the  lien  would  have  no  longer  any  basis 
of  debt  to  stand  upon. 

When  all  the  proceeds  of  an  attachment  are  required  to 
satisfy  the  judgments  of  prior  attachers,  so  that  subsequent 
ones  take  nothing,  the  latter  cannot  recover  damages  on  an 
appeal  bond.^ 

§  907.  Siq)€rsccleas.—  On  appeal  by  the  plaintiff,  without 
supersedeas,  the  sheriff  is  not  bound  to  hold  the  attached  prop- 
erty.* And  if  he  does  not  appeal  from  a  judgment  against 
his  attachment  within  the  legal  time,  no  further  order  is  nec- 
essary to  final  dissolution.^  Ko  appeal  lies  from  an  order  de- 
clining to  dissolve  an  attachment.^  The  defendant's  remedy 
is  by  appealing  the  case  after  final  judgment  against  him  on 

Loveland   v.    Mining    Co.,    76    Cal.  667;  Ryan  u.  Maxey  (Mont.),   35  P. 

564;  O'Connor  v.  Blake,  29  id.  315;  515;  Eastman  v.  Clackamas  Co.,  SS' 

Littlefield  v.  Davis,  62   N.  H.   492;  Fed.    24.      See  Maxey  v.    Speith,   8 

York  V.  Sanborn,  47  id.  404 ;  Brown  Mont.  494. 

V.  Harris,  2   G.   Greene,    507 ;    Har-  3  Thurman  v.  Blankenship,  79  Tex. 

row  V.   Lyon,   8    id.    157;    Suydam  171,  179. 

V.  Huggeford,  23  Pick.  470 ;  Clap  v.  *  Ryan   Drug  Co.  v.  Peacock,  40 

Bell,  4  Mass.  100;  Higgins  v,  Grace,  Minn.  470. 

59   Md.    374;    Johnson  v.   Edson,   2  SMcCormick,  etc.  Co.  t'.  Jacobson, 

Aiken,    302;    Anderson  v.   Land,    5  77  la.   582;  Ryan  v.  Heenan,  76  id. 

Wash.  403.  589. 

iKnapp  V.  Jay,  9  Mo.    App.    47;  t-Marhall  t'.  Ravisies,  22  Fla.  586; 

Rancher  v.  McElhinney,  11  id.  434.  Harrison  v.  Thurston,  11  id.  307.     In 

2  Martin  v.  Maxey  (Mont.),   35  P.  Alabama  an  order  dissolving  attach- 


§  908.]  ATTACHMENT    SALE.  G15 

the  merits.  Appeal  from  a  circuit  court  from  an  order  dis- 
solving attachment  was  held  not  authorized  in  Michigan.^ 
In  Missouri,  where  a  motion  to  dissolve  is  a  statutory  sub- 
stitute for  a  bill  in  equity,  the  appellate  court  is  not  limited 
to  the  finding  of  facts  in  the  trial  court.-  Ordinarily,  the 
finding  will  not  be  disturbed  on  appeal.^  In  Utah,  affidavits 
read  on  a  motion  to  dissolve  must  be  embodied  in  a  bill  of 
exceptions  or  they  will  not  be  noticed  on  appeal.'* 

A  judgment  plaintiff  cannot  bring  an  attachment  suit  to 
aid  execution  while  the  defendant's  appeal,  with  supersedeas^ 
is  pending.^  When  the  pendency  of  appeal  is  pleaded,  there 
must  also  be  an  averment  of  the  stay  of  proceedings.  The 
levy  of  an  attachment  is  void  while  the  defendant's  appeal, 
from  an  order  appointing  a  receiver,  is  pending.^ 

VI.  Attachment  Sale. 

§  90S.  Order  of  selaure  .superfluous. —  Judgment  with  priv- 
ilege upon  the  property  attached  and  in  court  should  not  be 
followed  b}^  a  writ  of  Jieri  facias;  for  there  is  nothing  to  be 
seized  or  levied  upon:'^ — the  res  being  already  in  court  act- 
ually or  constructively;  that  is,  in  the  sheriff's  hands  or  in 
those  of  a  keeper,  receiptor,  or  the  defendant  holding  under 
a  forthcoming  bond,  or  whomsoever  has  the  subordinate  pos- 
session. That  writ  may  be  employed  if  the  property  has  been 
taken  out  of  the  control  of  the  court  by  means  of  a  dissolu- 
tion bond;  and  also  when  the  judgment  is  merely  personal, 
giving  no  privilege  upon  the  attached  fund,  debt  or  property, 
or  giving  it  when  the  res  is  inadequate;  but  manifestly  there 
can  be  no  retaking  by  the  sheriff  for  the  plaintiff  when  he  is 
already  in  possession  under  the'attachraent  writ.  The  attach- 
ment having  been  made  as  a  preliminary  to  execution,  to  con- 
serve the  property  for  that  very  purpose,  the  writ  of  Jieri 
facias  is  inapplicable  after  judgment  sustaining  the  attach- 
ment is  not  appealable.  Stanton  v.  *  Bowring  v,  Bowring,  4  Utah,  185. 
Heard  (Ala.),  14  So.  359.  » Johnson  v.  Williams,  82  Ky.  45. 

1  Harney  u.  Pealer,  63  Mich.  572.  6 Stanton  v.  Heard  (Ala.),  14  So. 

•■i  Gilbert  v.  Gilbert,   33  Mo.   App.     359. 
259.  7  Wymau  v.  Eussell,  4  Biss.  307. 

sFeder  v.  Solomon,  26  Neb.  266. 


616  JUDGMENT.  [§§  909,  910. 

ment,  so  far  as  such  property  is  concerned;  for  the  lev\'  of 
an  attachment  and  the  levy  of  an  execution  operate  equally.^ 

§  909.  Order  of  sale  sufficient —  The  proper  writ  is  vendi- 
tioni exponas.  The  officer  is  commanded  to  expose  to  sale 
what  he  has  already  under  seizure.  If  he  has  intrusted  the 
attached  propert}'^  to  others,  under  bond  or  otherwise,  in  any 
legal  way,  he  must  first  regain  the  actual  custody;  and  then 
he  must  offer  it  to  the  public  in  market  overt,  under  such 
writ.^ 

If  the  judgment  is,  in  effect,  ovX^  in  rem;  that  is,  if  the  de- 
fendant was  not  served  and  not  in  court,  execution  can  be  di- 
rected against  only  the  property  attached  and  held,  whether  it 
prove  sufficient  to  satisfy  the  judgment  or  not,  since  such 
judgment  is  inoperative  beyond  the  value  of  the  res:  hence, 
in  such  case,  nothing  remains  to  be  done  but  expose  to  sale 
what  has  been  attached. 

§  910.  The  writs  of  attachment  and  vend.  ex.  together  con- 
stitute all  that  is  embraced  in  the  fi.fa.  Together,  they  are 
as  though  a  fi.fa.  had  been  issued  when  the  writ  of  attach- 
ment was  issued,  if  that  could  then  have  been  legally  done. 
In  other  words,  the  writ  is  retroactive  in  its  effect,  relating 
back  to  the  levy  made  in  the  incipency  of  the  suit;  and  it  is 
as  effective  against  all  levies  subsequent  to  that  time,  and  all 
liens  since  created,  as  anj fi.fa.  is  from  the  date  of  seizure 
thereunder.  The  lien  hypothetically  created  by  the  attach- 
ment levy,  having  now  been  perfected  by  judgment,  may  be 
vindicated  by  the  execution  of  the  property  attached,  as 
though  it  had  been,  all  along,  from  its  incipiency,  a  complete 
lien.^ 

1  Shorten  v.  Drake,  B8  Ohio  St.  76.  v.  Little,  3  id.  305 ;  Welch  v.  Joy,  13 

2 It  must  be  the  officer  in  charge:  Pick.   477;  Martin  v.  Dryden,  6  111. 

not  an  ex-sheriff  who  executed  and  187;  Gushing  v.   Hurd,  4  Pick.  253; 

returned    the    writ    of  attachment  Sigourney  v.   Larned,  10  id.  72;  Mc- 

when  in  office.     Johnson  v.  Foran,  Median  i\  Griffing,  3  id.  149;  War- 

58  Md.  148.  den  v.  Adams,  15  Mass.  233;  Porter 

3  Porter  u.  Pico,  55  Gal.  165;  Tyr-  v.    Millett,    9    id.    101;   Jackdon  v. 

reVs  Heirs  v.  Rountree,  7  Pet.  464;  Chamberlin,   8  Wend.   620.     It  has 

Wallace  v.   McConnell,    13  id.  151 ;  been  held  in  Texas  that  the  attach- 

Van  Loan  v.   Kline,   10  Johns.  129;  ment  sale  conveys  the  defendant's 

Goodwin   v.    Richardson,    11    Mass.  interest  acquired  between  levy  and 

475;    Goffin    v.    Ray,    1     Met.    212;  sale,  as  well  as  that  which  he  had 

Pierson  v.  Robb,  3  Scam.  143 ;  Penny  when  the   levy   was    laid   upon   it. 


§§  911,  912.]  ATTACHMENT    SALE.  617 

A  levy  of  attachment  is  no  satisfaction  of  the  debt; ^  it 
must  have  the  hen  perfected,  and  vindicated  by  sale,  before 
it  can  equal  an  execution  in  effect.- 

§  911.  Practice. —  The  general  practice  is  to  issue  an  execu- 
tion, notwithstanding  the  inapplicability  of  that  part  of  the 
order  commanding  the  sheriff  to  seize  what  has  been  already 
seized  and  is  in  possession  of  the  court  in  the  hands  of  that 
officer.  But  the  superfluity  does  no  harm.  The  writ  is  issued 
by  the  clerk  or  prothonotary,  who  should  docket  its  date  and 
the  names  of  the  parties,  though  that  is  not  essential  to  the 
validity  of  the  attachment  lien.^  But  the  lien  is  held  limited 
to  the  amount  stated  in  the  writ,  though  the  judgment  may 
be  greater.*  The  service  of  the  execution  is  like  that  of  a 
summons.^ 

When  attachment  is  levied  after  judgment,  there  should  be 
prior  notice  to  the  defendant,  but  the  writ  need  not  be  served 
on  him,  in  Montana.^ 

§912.  Defendant's  iwoiyerty. —  The  execution,  though  al- 
ways directed  against  the  attached  property  when  it  is  to 
vindicate  a  judicially  recognized  attachment  lien,  can  onlv 
have  binding  effect  so  far  as  the  res  really  belongs  to  the  de- 
fendant. In  other  words,  only  the  defendant's  interest  has 
been  validly  attached,  can  have  been  validly  condemned  to 
pa}^  the  debt,  and  can  now  be  validly  sold  so  as  to  convey  a 
good,  unimpeachable,  indefeasible  title  to  the  purchaser.'  Xo- 
body  but  the  defendant  has  been  summoned,  or  notihed  by 
publication;  the  writ  has  had  reference  to  no  property  but 
his;  jurisdiction  has  been  over  only  him  and  his;  the  suit  has 

Willis  V.  Pounds  (Tex.  App.),  25  S.  Hoag  v.  Howard,  53  id.  561 ;  Pixley 

"W.  715.  V.  Huggins,  15  id.  131 ;  Purdy  v.  Ir- 

'  McBride    v,    Faraiers'   Bank,    28  win,  18  id.  350;  Hunter  v.    Martin, 

Barb.    476;   Cravens  v.   Wilson,   48  12  id.  377;  Plant  v.   Smythe,  45  id. 

Tex.  324.  162;  Wilcoxen  v.  Miller,  49  id.  195; 

-  Yourt  V.  Hopkins,  24  III.  326.  Ledyard  v.  Butler,  9  Paige,  132;  Ells 

3  McLaughlin  v.    Phillips,   10   Pa.  v.  Tousley,  1  id.  283;  Arnold  v.  Pat 

Co.  Ct.  R.  382.  rick,  6  id.  315;  Lounsbury  v.  Pnrdy, 

^Hubbellv.  Kingman,  52  Ct.  17.  11  Barb.    494;  Averill  v.    Loucks.   6 

5  Mesker  v.  Frothingham,  1  Pa.  id.  26;  Thompson  v.  Baker,  74  Me. 
Dist.  R.  120.  48 :  Hurst  r.  Hurst,  2  Wash.  C.  C.  78 ; 

6  Hoffman  v.  Imes  (Mont.),  34  P.  Finch  v.  Earl  of  Winchelsea,  1  P. 
728;  Mont.  Code  Civ.  Proc,  g  181.  Williams,  278. 

7De  Cells  v.  Porter,  59  Cal.  464; 


618  JUDGMENT.  [§  913. 

been  limited  to  Lis  interest  as  tlie  res  proceeded  against;  the 
decree  cannot  possibly  divest  the  interests  of  those  who  have 
not  been  notified  or  impleaded;  nothing  but  what  belongs  to 
the  judgment  debtor  can  be  executed  to  pay  his  debt;  and,  if 
the  property  exposed  to  sale  by  the  sheriff  as  that  of  the  de- 
fendant is  really  such,  and  the  court  has  had  jurisdiction  over 
it,  and  has  exercised  it  without  excess,  and  no  fraud  has  viti- 
ated the  proceedings,  decree  or  sale,  the  purchaser  buys  as 
though  purchasing  of  the  defendant  himself.^ 

§913.  Defendant  firm. —  Partnership  property  is  not  only 
liable  to  be  levied  upon  for  a  partnership  debt  but  also  for 
that  of  a  member  of  the  firm.  In  the  latter  case,  sale  of  goods 
may  be  prevented  that  the  interest  of  the  indebted  partner 
may  be  ascertained,  which  is  his  share  of  the  surplus  after  all 
the  liabilities  of  the  firm  have  been  extinguished.  Should  the 
creditor  insist  upon  the  sale  of  partnership  goods  to  satisfy  his 
execution  against  the  indebted  partner,  he  may  be  restrained 
by  injunction.  Resort  may  be  had  to  a  court  of  equity  for 
the  adjustment  of  the  partnership  affairs  and  the  ascertain- 
ment of  the  judgment  debtor's  interest  subject  to  execution; 
and  another  of  the  partners  is  competent  to  invoke  the  aid  of 
such  court  for  that  purpose.  Should  the  interest  of  the  in- 
debted property  not  be  thus  ascertained  before  the  execution 
sale,  so  that  it  would  be  sold  subject  to  subsequent  ascertain- 
ment, the  purchaser  would  become  a  tenant  in  common  with 
the  remaining  partner  or  partners.^  And  the  same  rule  ap- 
plies to  joint  owners  and  tenants  in  common.^ 


1  Evans  v.  McGlasson,  18  la.  150 
Orth  V.  Jennings,  8  Blackf.  420 
Runyan  v.   McClellan,  24  Ind.  165 


ham  V.  Caster,  12  id.  131;  Washburn 
V.  Bank  of  Bellows  Falls,  19  Vt.  278; 
Bardwell  v.  Perry,  id.  293;  Burgess 


Pixleyu  Huggins,  15  Cal.  183;  Dodge  v.   Atkins,  3   Black,   337;  Moore  v. 

V.  Walley,  22  id.  224;  McDonald  v.  Sample,  3  Ala.  837 ;  Shaver  w.  White, 

Badger,  23  id.  399;  Blood  v.  Light,  6   Munf.  110;  White  v.  Woodward. 

38  id.  653.  8  B.  Mon.  484;  Hershfield  v.  Claflin, 

2  Place  V.  Sweetzer,  16  Ohio,  143;  25  Kan.  166;  People's  Bank  u.  Shry- 
Nevvhall  u  Buckingham,  14  111.  405;  ock,  48  Md.  427;  Douglass  v.  Wins- 
White  V.  Jones,  38  id.  159,  166;  Phil-  low,  20  Me.  89;  Tredwell  v.  Roscoe. 
lips  V.  Cook,  24  Wend.  389 ;  Scrug-  3  Dev.  50 :  Schatgill  v.  Bolton,  5  Mc- 

3  James  v.  Stratton,  32  111.  202;  dell  v.  Cook,  2  Hill,  47;  Blevins  v. 
Millville  V.  Brown,  15  Mass.  82;  Reed  Baker,  11  Iredell,  291. 

V.  Howard,  2  Met.  (Mass.)  36:  Wad- 


§§  914,  915.]  DISTRIBUTION.  619 

A  fraudulent  attachment  and  sale  may  be  set  aside  by  a  bill 
directed  against  the  parties  to  the  suit,  their  agents,  the  offi- 
cers, etc.;  and  such  bill  is  held  not  multifarious.^ 

§  914.  Sale  limited  to  sufficient  quantity. —  The  sale  of  sev- 
eral attached  lots  or  tracts  should  not  be  ordered  in  s^ross 
when  one  or  two  would  be  sufficient  to  satisfy  the  judgment.'^ 
Each  offered  for  sale  should  be  described  so  as  to  distincruish 
one  from  another.*  But  the  selling  of  attached  personalty  in 
bulk  has  been  held  no  ground  for  damages."*  That  must  de- 
pend upon  circumstances.  If  such  method  of  sale  result  in 
injury  to  the  complainant,  why  should  he  not  be  recompensed 
on  proof  of  the  damage? 

The  advertisement  of  the  sale  must  be  such  as  to  inform  the 
public.  If  it  is  not  misleading,  its  discernible  mistakes  will 
not  prove  fatal.^ 

Confirmation  of  the  attachment  sale  by  the  court  is  essen- 
tial in  many  states,  as  in  Arkansas.^ 

VII.    DiSTKIBUTION. 

§  915.  Conmirsns. —  One  of  several  attaching  creditors,  after 
each  has,  in  a  separate  proceeding,  obtained  judgment  against 
the  common  debtor,  may  sue  all  the  others  to  have  his  right 
of  priority  adjudged  contradictorily  with  them.^     However 

Cord,  478;  Weaver  v.  Ashcroft,  50  Ala.  148.     See  Cartwright  v.   Bam- 

Tex.  428;  Saunders  v.   Bartlett,    12  berger,  90  id.  405. 
Heisk.  316;  Marston  v.  Dewberry,  21        2  starks  v.  Curd,  88  Ky.  164. 
La.  Ann.  518;  Choppin  v.  Wilson,  27        nicDonald   t\  Bank,  74  Tex.  539. 
id.  444 ;  United   States  v.  Williams,        ^  Jefferson  Bank  v.  Eboi-n,  84  Ala. 

4   McLean,  236;  Gilmore  v.  N.  Am.  529. 

Sand  Co.,  Peters' C.  C.  460;  Buck-        5  Hewitt  f.  Durant,  78  Mich.  180. 
hurst   V.   Clinkard,    1    Shower,   173;        ^Fj-eeman  u.  Watkins,  52  Ark.  446; 

Pope  V.  Haman,  Comb.  217;  Parker  Bell  v.  Green,  38  id.    78;  Greer  v. 

V.  Pistor,  3  Bos.  &  Pull.  288:  John-  Powell,  3  Met.  (Ky.)  124;  Freeman 

son  V.  Evans,  7  Mann.  &  Grang.  240;  on  Ex.,  J^  304. 

Story  on  Part.,  §§  261,  264 ;  Gow  on        7  Jn  Ohio  it  may  be  by  an  original 

Part.,  §  206;  Collyer  on  Part.,  §  822.  petition  in  the  nature  of  a  creditor's 

Contra,  Morrison  v.  Blodgett,  8  N.  H.  bill,  making  all  parties  defendants 

238;  Deal  u  Bogue,  20  Pa.  St.  228,  who  claim  liens  on  the  fund  attached; 

233.  and  to  this  the  other  judgment  cred- 

1  Bamberger  v.  Voorhies  (Ala.),  13  itors  or  professed  lien-holders  may 

So.   305;  Gusdorf  v.  Ikelheimer,   75  file  answers  and  cross-petitions,  etc. 

Seibert  t\  Switzer,  35  Ohio  St.  662. 


620  JUDGMENT.  [§  916. 

brought  into  contact  with  each  other,  under  the  varyhig  prac- 
tice of  the  different  states,  the  rival  creditors  must  have  the 
opportunity  afforded  of  presenting  their  several  judgments  so 
as  to  have  their  respective  liens  marshaled  according  to  rank. 
There  must  be  a  concursus  of  creditors,  or  something  equiva- 
lent, so  that  all  questions  concerning  their  respective  claims 
to  priority  over  others  may  be  contradictorily  considered  and 
finally  determined.^ 

The  principal  question  in  such  a  concursus  generally  is  that 
concerning  the  date  of  the  attachment.  Where  the  act  of  at- 
taching is  the  creation  of  the  lien,  as  in  most  of  the  states, 
and  where  the  first  attacher  has  priority,  as  is  almost  uni- 
versally the  case,-  the  precise  time  when  the  act  was  per- 
formed becomes  very  important.  If  the  property  attached 
is  sufficient  in  value  to  pay  only  the  first  attacher,  the  date  of 
seizing  becomes  all-important. 

§  916.  Proceeds. —  The  contest  among  creditors  frequently, 
and  indeed  usually,  takes  place  after  the  proceeds  of  the  at- 
tached property  have  been  brought  into  court.  If  the  cred- 
itor, who  has  caused  execution  to  issue  upon  his  judgment  and 
sale  to  be  made,  is  really  outranked  by  another  attachment 
creditor,  or  by  the  holder  of  a  recorded,  pre-existing,  perfect 
lien,  he  will  have  to  give  way  to  the  one  having  the  higher 
privilege;  and  his  judgment  must  look  to  the  residue  after 
the  first  lien  has  been  satisfied.  The  question  between  rival 
claimants  for  the  proceeds  is  settled  by  the  judgment  of  dis- 
tribution. It  is  almost  always  after  the  proceeds  are  in  court 
that  the  mortgagee  appears  to  claim  his  prior  right  to  pa}--- 
raent.     The  attachment  is  necessarily  subject  to  and  under 

1  Lexington  &   Big  Sandy  R.    R.        2  Allen  v.    Gilliland,  6  B.  J.  Lea, 

Co.  V.  Ford  Place  Glass  Co.,  84  Ind.  626;  Moore  v.  Fedewa,  13  Neb.  379; 

516;  Davis  v.  Friedlander,  104  U.  S.  Wright  v.  Smith,  11  id.  341 ;  Adler  v. 

570.    No  distribution  under  Colorado  Roth,    2  McCrary,  445  (in  which  it 

Code,  §  116.     Baum   v.   Gosline,    15  was  held  that  if  there  is  an  attach- 

FeJ.  220.  A  plaintiff  in  Texas  prayed  ment  in  a  federal  court  and  another 

the  court  to  have  the  balance  of  the  in  a  state  court,  the  first  made  has 

pioceeds  from   an   attachment  sale  the   priority  of    lien);   McBride    v. 

(remaining  after  his  judgment  was  Harn,  48  Iowa,  151 ;  Crowninshield 

satisfied)  applied  to  satisfy  another  v.  Strobel,  2  Brev.  80;  Robertson  v. 

judgment   of  his  against  the  same  Forrest,  id.  466;  Bethune  u.  Gibson, 

defendant.     He  was  denied.     Parks  id.    501 ;    Williamson    v.    Bowie,    6 

V.  Young,  75  Tex.  278.  Munf.  176. 


§§  917,  918.]      JUDGMENT  FOR  DEFENDANT.  021 

the  mortgage,  since  the  interest  of  the  attachment  defendant 
is  all  that  could  be  validly  attached. 

If  the  defendant  appears  to  object  to  the  confirmation  of 
sale,  he  waives  defects  in  the  publication  notice:'  so  distri- 
bution may  be  legally  made;  but  not  if  he  has  been  fraudu- 
lentl}^  summoned  and  has  kept  out  of  court,  as  the  proceedings 
would  be  void.2  For  amendable  defects  in  the  attachment 
writ  and  bond,  the  execution  cannot  be  fjuashed  after  judg- 
ment at  the  instance  of  one  duly  summoned  or  notified.' 

The  distribution  of  funds  should  not  precede  the  trial  of  a 
plea  in  abatement  relating  to  them.^ 

YIII.  Judgment  fok  Defendant. 

§  917.  In  personal  action. —  Final  judgment  for  the  defend- 
ant in  the  personal  action  dissolves  the  attachment,  as  a  matter 
of  course,  though  he  may  have  previously  failed  in  all  his  ef- 
forts to  have  it  dissolved  for  causes  appertaining  to  the  ancil- 
lary proceeding.  Such  judgment  enables  him  to  prosecute 
his  action  for  whatever  injury  he  may  have  received  by  the 
abuse  of  the  process,  as  well  as  does  an  order  expressly  dis- 
solvins:  the  attachment  in  the  course  of  the  suit. 

§  918.  Restoration. —  The  judgment  defendant  is  entitled  to 
the  release  of  his  property  immediately,  unless  there  has  been 
an  appeal  granted  or  writ  of  error  sued  out  operating  as  a 
supersedeas.  Judgment  of  restoration  is  entered  in  proceed- 
ings ^'7^  rem  of  general  character,  when  the  libelant  is  defeated 
in  his  attempt  to  get  a  judgment  of  condemnation;  and,  in 
such  proceedings  of  a  limited  character,  such  as  an  attach- 
ment suit  is,  restoration  is  sometimes  expressly  ordered,^  though 
the  usual  entry  is  judgment  for  the  defendant,  leaving  the 
restoration  a  matter  of  implication.  There  is  really  no  neces- 
sit}^  that  it  should  be  expressed,  since  the  personal  judgment 
for  the  defendant  is  a  dissolution  of  the  attachment.^     And  it 

iHelmer  r.  Rehm,  14  Neb.  219.  ^Sannes    n   Ross,    105    Ind.    558; 

2  Duringer  v.  Moschino,  93  Ind.  495.  Higgins  v.  Grace,  59  Md.  oG5 ;  Love- 

3  Miller  v.  Whitehead,  66  Ga.  283;  land  v.  Alvord,  76  Cal.  562;  Harrow 
Steers  v.  Morgan,  id.  552.  v.  Lyon,  3  Greene  (la.),  157;  Brown 

<  Boland  v.  Ross  (Mo.),  25  S.  W.  524.     v.  Harris,  2  id.  505 ;  Dean  v.  Steph- 
5  Camp  V.   Schuster,  51  Mo.  App.     enson,  61  Miss.  175. 
403. 


G22  JUDGMENT.  [§§  919,  920. 

has  been  held  that,  though  there  has  been  judgment  against 
him,  the  attachment  will  be  dissolved  if  the  sale  fails  and  the 
plaintiff  makes  a  second  seizure,  thus  abandoning  the  first.' 
Attachment  is  not  dissolved  by  the  plaintiff's  being  nonsuited, 
if  the  nonsuit  be  set  aside  at  the  same  term.^  When  there  is 
judgment  for  the  defendant,  he  cannot  be  charged  with  costs  — 
it  would  be  unconstitutional.^ 

§  919.  Judgment  of  restoration  to  a  claimant  does  not  affirm 
his  title  against  any  person  afterwards  suing  for  it,  even 
though  the  question,  in  the  case  in  which  the  judgment  was 
rendered,  turned  upon  that  of  the  claimant's  ownership.* 

§  920.  Effect  of  deatli. —  Attachment  abates  upon  the  death 
of  the  defendant.^  It  abates  till  the  decedent's  adminis- 
trator be  made  a  party .^  The  attachment  of  land  is  dissolved 
by  the  death  of  the  defendant.^  In  Louisiana  the  suit  con- 
tinues against  the  heirs  on  the  death  of  the  defendant.  They 
must  be  separately  cited,  and  judgment  may  be  rendered 
against  each  according  to  his  share  of  the  estate;  it  cannot 
be  in  solido? 

1  Croswell  v.  Tufts,  76  Me.  295.  Contra:  Rogers  v.  Burbridge  (Tex. 

2Hubbell  V.  Kingman,  53  Ct.  17.  App.),  24  S.  W.  300;  Tex.  R.  S.,  arts. 

^Bovve  V.  Reflector  Co.,   36  Hun,  179,  1248.     See  Graham  u  Boynton, 

407.     Nor  for  fees.     Union  Dist.  Co.  35  Tex.  713. 

w.  Pharmaceutical    Co.,    58    N.    Y.        6  Lord  u  Allen,  34  la.  281 ;  White 

Superior,  417.    S'ee  Adler  u.  Baltzer,  v.  Heavner,  7   W.  Va.   324;   Moore 

54  id.  514.  V.   Thayer,  10  Barb.  258;  Thatcher 

4  Gushing  u.  Laird,  15  Blatchf.  219.  v.  Bancroft,   15  Abb.   Pr.  243.     See 

5  Davenport    v.    Tilton,    10     Met.  Dorn  v.  Blake,  46  III.  App.  329. 
(Mass.)  320;  Vaughn  v.  Sturtevant,        ^Phillips  v.  Ash,  63  Ala.  414;  Mc- 
7  R.  I.  372;  Collins  v.  Duffy,  7  La.  Clellan  v.  Lipscomb,  56  id.  255;  Lips- 
Ann.  39;  Harrison  v.  Renfro,  13  Mo.  comb  v.  McClellan,  72  id.  151. 

446;    Sweringen  v.  Eberius,  7   Mo.        ^La.   Code  of   Practice,  art.   724- 
431;  Kensley  v.  Morgan,  47  Gal.  633;     Schwartz  v.  Claflin,  60  Fed.  676. 
Kennedy  v.  Ragnet,  1  Bay  (S.  C.),  1. 


CHAPTER  XXIII. 

FINAL  JUDGMENT  AGAINST  THE  GARNISHEE. 

I.  In  General §§  921-925 

II.  When  Void  or  Voidable 926-931 

III.  Interest,  when  Chargeable 932-936 

IV.  Costs,  Fees  and  Compensation 937-943 

V.  Garnishment  in  Execution 944-950 

VI.  Garnishee's  Plea  in  Defense  of  Subsequent  Suit  by 

the  Attachment  Defendant 951-954 

VII.  What  Judgment  is  a  Bar  to  Subsequent  Action      .  955-963 
VIII.  Subsequent  Suits  by  Garnishors  and  Others  Against 

Garnishees 964-967 


I.  In  General. 

§921.  After  judgment  against  the  defendant. —  Final  judg- 
ment must  be  rendered  against  the  defendant  in  an  attach- 
ment suit  before  the  garnishee  can  be  ordered  to  pay  into 
court  or  deliver  property  for  execution.^  There  cannot  be 
joint  judgment  against  both.-  The  judgment  against  the  de- 
fendant must  have  been  signed  and  made  of  record  before  the 


1  Miller  i\  Anderson,  19  Mo.  App. 
71 ;  Withers  v.  Fuller,  30  Gratt.  547; 
Randolph  v.  Little,  62  Ala.  376;  Lee 
V.  Ryall,  68  id.  354;  Case  v.  Moore, 
21  id.  758;  Bostwick  v.  Beach,  18  id. 
80;  Lowry  v.  Clements,  9  id.  422; 
Leigh  V.  Smith,  5  id.  583;  Gaines  v. 
Bierne,  3  id.  114;  Toledo  R.  R.  Co. 
V.  Reynolds,  72  111.  487:  Hinds  v. 
Miller,  52  Miss.  485;  Hoffman  v. 
Simon,  id.  302;  Murdock  v.  Dan- 
iel, 58  id.  411;  Roberts  v.  Barry,  46 
id.  260;  Metcalf  v.  Steele,  id.  511; 
Kellogg  V.  Freeman,  50  id.  127;  Er- 
win  V.  Heath,  id.  795;  Lingardt  v. 
Deitz,  30  Ark.  224;  Collins  v.  Friend, 
21  La.  Ann.  7;  Rose  v.  Whaley,  14 
id.  374 ;  Proseus  v.  Mason,  12  La.  16 ; 
Caldwell    v.   Townsend,   5    Martin, 


N.  S.,  307;  Clough  v.  Buck,  6  Neb. 
343;  Washburne  v.  New  York,  etc. 
Co.,  41  Vt.  50;  Rowlett  v.  Lane,  43 
Tex.  274;  Bushnell  v.  Allen,  48  Wis. 
460;  Moore  v.  Allen,  55  Ga.  67; 
Bryan  v.  Dean,  63  id.  317;  House- 
mans  V.  Heilbron,  28  id.  186;  Eman- 
uel r.  Smith,  38  id.  602 ;  Railroad  v. 
Todd,  11  Heisk.  549;  Langford  v. 
Ottumwa  Water  Power  Co.,  53  la. 
415;  Whorley  v.  M.  &  C.  R.  Co.,  72 
Ala.  20;  Walton  v.  Sharp,  11  Lea, 
578;  Mitchell  v.  Watson,  9  Fla.  160; 
Sun  Ins.  Co.  v.  Seeligson,  59  Tex. 
3;  Malloyt'.  Burtis,  124  Pa.  St.  161; 
Pierce  v.  Wade,  19  Bradw.  185;  Mer- 
chant r.  Rowland,  46  111.  App.  458. 
2  Fourth  N.  Bank  v.  Mayer,  89  Ga. 
108. 


621  FINAL   JUDGMENT    AGAINST    GARNISHEE.  [§  922. 

auxiliary  one  can  be  rendered.  The  latter  is  subsidiary  to  the 
former,^  Both  need  not  be  entered  at  once;  that  is,  the 
one  against  the  garnishee  may  be  at  any  time  after  the  lirst.- 
Where  the  judgment  is  conditional,  it  must  be  so  expressed.' 
Sufficient  reason  for  judgment  is  the  garnishee's  admission, 
direct  or  indirect,  that  he  owes  the  defendant  uncondition- 
ally, or  that  he  holds  property  of  the  defendant  liable  to 
execution;  or  the  garnishee's  fraudulent  evasion  of  interroga- 
tories; or  the  proof  aliunde  of  the  fact  of  unconditional  in- 
debtedness to  defendant  or  of  possession  of  property  liable  to 
execution  upon  the  plaintiff's  judgment. 

Where  there  is  no  judgment  against  the  credit  or  property 
attached  in  the  garnishee's  hands,  but  merely  a  personal  one 
against  the  defendant,  there  can  be  none  against  the  garnishee. 
The  order  charging  him  is  void ;  for  such  merely  personal 
judgment  against  the  principal  defendant  is  equivalent  to  the 
dismissal  of  the  attachment  proceedings.*  It  has  been  held, 
however,  that  attachment  holds  till  set  aside,  and  that  there- 
fore no  order  or  judgment  sustaining  it  is  necessary  to  the 
validity  of  garnishment  proceedings.^  A  personal  judgment 
against  the  defendant,  with  the  attachment  not  sustained 
either  expressly  w  hy  ivriMcation,  forms  no  basis  for  a  judg- 
ment against  the  garnishee  in  any  state.  When  an  attach- 
ment judgment  is  reversed  on  appeal,  judgment  against  the 
garnishee  falls  with  it.^ 

§  922.  Ground  of  the  judgment. —  Eeasons  for  an  order  dis- 
charg^ing  the  garnishee  are  his  untraversed  denial  of  indebted- 

DO  O 

ness  to  defendant  or  possession  of  defendant's  property,  his 
candid  statement  of  facts  of  such  a  character  as  to  show  no 
legal  liability,^  his  right  to  the  benefit  of  a  doubt,  and  the  fail- 

iToll  V.  Knight,  15  la.  870;  Bean  SGoode  v.  Holcombe,  37  Ala.  94; 

V.    Barney,    10  id.  498 ;    Stickley  v.  Bonner  v.  Martin,  id.  83. 

Little,  29  111.  315;  Case  v.  Moore,  21  ■»  Emery  v.    Royal,  117    Ind.  299; 

Ala.  758;  Wyman  v.  Stewart,  42  id.  Wright  v.  Manns,  111  id.  422;  Smith 

163;  Chambers  v.Yarnell,  37  id.  400.  v.  Scott,  86  id.  346;  Lowry  v.  Mc- 

2  Noble    V.    Merrill,   48    Me.    140;  Gee,  75  id.  508. 

Lockhart    v.  Johnson,   9    Ala.  223;  5  Kenosha  Stove  Co.  v.  Shedd,  82 

Gi-aves  v.  Cooper,  8  id.  811;  Weber  la.  540. 

V.    Carter,    1    Phila.   221 ;  Slatter  v.  ^  Smith   v.  Railroad,  49  Mo.  App. 

Tiernan,  6  La.  Ann.  567;  Sturges  v.  54. 

Kendall,  2  id.  565.     •  7  Hamilton  v.  Hill  (Ala.),  29  A.  956. 


§  923.]  IN    GENERAL.  625 

lire  of  the  plaintiff  to  get  judgment  against  the  defendant. 
The  judgment  against  the  garnishee  must  state  that  against 
the  principal  defendant,  and  its  amount.^  The  admission  of 
liability  to  the  principal  defendant,  in  the  garnishee's  answer, 
is  sufficient  to  support  judgment  against  the  garnishee  with- 
out other  evidence,- 

§  923.  Amount —  The  amount  of  the  judgment  against  the 
garnishee  cannot  exceed  the  debt  he  owes  or  the  value  of  the 
property  he  holds  subject  to  execution  for  the  defendant's 
debt.^  So  far  as  concerns  the  property,  its  delivery  to  the 
sheriff  when  demanded  is  all  that  is  required,  so  that  there  is 
no  judgment  for  its  value  unless  it  should  fail  to  be  forth- 
coming when  wanted.  The  garnishee  is  not  liable  to  a  mone}'' 
judgment  without  chance  to  surrender  property  held  by  him.* 
If  he  is  in  possession  of  more  of  defendant's  property  than  is 
sufficient  to  satisf}^  the  judgment,  or  owes  him  more,  the  sur- 
plus remains  unaffected. 

If  the  judgment  against  the  defendant  is  greater  in  amount 
than  the  sum  specified  in  the  writ  of  garnishment,  the  judg- 
ment against  the  garnishee  must  be  in  accordance  with  the 
writ  if  the  evidence  will  support  it  to  that  amount;  it  cannot 
be  made  to  exceed  the  sum  stated  in  the  writ.^  A  stipulation 
that  if  the  court  should  find  for  the  plaintiff  the  judgment 
shall  be  for  a  stated  sum  is  no  basis  for  determining  the  gar- 
nishee's indebtedness." 

There  is  no  breach  of  the  condition  to  pay  in  case  of  con- 
demnation, after  bonding,  so  far  as  the  debt  or  property  sub- 
jected to  garnishment  shall  be  found  liable,  until  there  has 

1  Brake  v.  Curd,  etc.  Co.  (Ala.),  14  *  Hawthorn  v.  Unthank,  52  la.  o07. 

So.  773;  Whorley  v.  Railroad  Co.,  73  5  Hoffman  v.  Simon,  53  Miss.  302. 

Ala.  20;  Chambers  v.  Yarnell,  37  id.  This  was  garnishment  in  execution, 

400;  Faulks    v.    Heard,   31   id.  516;  which  is  held  to  be  original  process 

Gunn  ?;.  Howell,  27  id.  676.  in  Mississippi;  but  the  principle  is 

-  Weirich  v.  Scribner,  44  Mich.  73;  general  that  the  garnishee  cannot  be 
Coe  V.  Rocha,  22  La.  Ann.  590;  Con-  held  beyond  the  amount  claimed  of 
noly  V.  Cheesebro,  21  Ala.  106;  him,  notwithstanding  the  greater  de- 
Cairo,  etc.  R.  Co.  V.  Hindman,  85  mand  against  the  defendant.  San- 
Ill.  521;  Donnelly  v.  O'Connor,  22  ford  v.  Bliss,  12  Pick.  116;  Hitch- 
Minn.  309;  Cardany  v.  Furniture  cock  v.  Watson,  18  111.  289. 
Co.,  107  Mass.  116.  « Cairo  &  St.   Louis  R.   R.  Co.  v. 

3  Carroll    v.  Milner,    93   Ala.  301 ;  Killenburg,  92  111.  142. 
McGee  v.  Childress,  3  Stew.  506. 
40 


626  FINAL   JUDGMENT    AGAINST    GARNISHEE.  [§  924. 

been  judgment  rendered  in  favor  of  the  plaintiff  on  the  gar- 
nishment, finding  the  amount.^ 

§  924.  Irregularities. —  A  garnishee  ma}^  attack  the  princi- 
pal judgment  as  invalid,-  but  he  cannot  object  to  irregulari- 
ties in  proceedings  against  the  defendant,  unless  such  as 
would  make  the  judgment  void.^  l*^or  can  he  complain  that 
the  decree  was  without  process,  if  the  defendant  has  confessed 
service.*  Nor  can  he  have  a  judgment  against  himself  set 
aside,  on  the  ground  that  the  evidence  was  insufficient,  upon 
motion  made  after  the  term.^  N'or  can  he  demand,  for  his 
own  protection,  that  the  judgment  be  rendered  upon  the  evi- 
dence adduced,  when  the  defendant  has  confessed  judgment.*' 
Nor  can  he  object  to  the  complaint  after  judgment  against 
him,  when  the  defendant  has  been  served  or  is  in  court  and 
has  made  no  objection.'^  Ilis  remedy  is  by  appeal  or  writ  of 
error,  according  to  the  practice  in  his  state.  The  garnishee 
should  appeal  from  a  judgment  against  him  as  acceptor  of  a 
draft  or  order,  rendered  in  an  attachment  suit  against  the 
drawer,  since  he  will  remain  liable  to  the  holder  of  the  draft.*^ 

Before  property  held  by  the  garnishee  has  been  declared 
subject  to  garnishment,  he  may  set  up  that  there  has  been  no 
judgment  against  him  for  the  debt  claimed  by  the  plaintiff, 
or  that  judgment  against  him  has  been  discharged.  The 
court  may  refuse  to  strike  out  his  answer  for  having  been 
filed  after  the  term  to  which  the  garnishment  was  returnable, 
and  refuse  to  give  judgment  on  the  bond  to  dissolve  the  at- 
tachment, Avhile  he  has  the  rights  above  mentioned ;  that  is, 
while  there  has  been  no  judgment  against  him  on  the  plaint- 
iff's claim."  But  if  he,  by  his  laches,  has  allowed  judgment 
against  him  to  become  absolute,  he  has  no  remedy  after  the 
term,  in  Alabama.^"     If  he  has  refused  to  certify  the  amount 

1  Moore  v.  Allen,  55  Ga.  67.  «  Daniel  v.  Daniels,  63  Miss.  352. 

2  Frisk  V.  Reigelman,  75  Wis.  499.  ^  Becknell  v.  Becknell,  110  lud.  92. 
He  may  defend  by  showing  that  the  8  Montague  v.  Myers,  11  Heisk. 
defendant  was  dead  before  the  judg-  539. 

nient  was  rendered.     Allard  v.   De  ^  AVhitehead  v.   Patterson,  88  Ga. 

Brot,  15  La.  253.  748. 

SBensonu.  Hollaway,  59Miss.  358.  lo  Talladega   Co.    v.    McDonald,  97 

4  Sadler  v.  Prairie  Lodge,  59  Miss.  Ala.  508:  O'Neal,  Ex  parte,  72  id. 
572.  560;  Renfro  v.  Merryman,  71  id.  195; 

5  Fort  V,  Stroheeker.  58  Ga.  262.  Norwood  v.  Kirby,  70  id.  397 ;  Beadle 


§  925.]  IN    GENERAL.  627 

and  description  of  the  defendant's  property  in  his  hands,  per- 
sonal judgment  may  be  rendered  against  him,'  If  he  has 
failed  to  hold  the  defendant's  property  because  he  did  not 
know  that  it  belonged  to  the  defendant,  his  honest  ignorance 
is  excusable.^ 

It  has  been  held  that  a  garnishee  is  not  bound,  in  the  ab- 
sence of  the  defendant,  to  make  objection  to  amendable  defects 
appearing  of  record.'  He  should,  however,  claim  for  such 
absentee  the  benefit  of  exemption,  when  property  or  a  credit 
exempt  by  law  has  been  attached  or  subjected  to  garnishment.* 

§  925.  Order  to  imy. —  Garnished  funds  or  debts  should  not 
be  ordered  to  be  paid  into  court  prior  to  judgment  against 
the  defendant;  and  certainly  not  before,  in  any  case,  unless 
the  attaching  creditor  has  previously  secured  the  garnishee 
b}'-  a  bond.  Such  payment,  if  made  prematurely,  without 
bond,  should  be  annulled,  and  the  funds  repaid  to  the  garni- 
shee,  in  case  the  creditor  should  fail  in  his  suit  against  the 
defendant.'  A  different  rule  would  subject  the  garnishee 
to  double  payment,  since  the  defendant  could  recover  of  him 
after  having  gained  the  principal  suit. 

Even  after  final  judgment  against  the  defendant,  the  gar- 
nishee should  not  be  subjected  to  a  general  order  to  pay  the 
judgment  and  all  the  costs  of  the  proceeding,  though  his  an- 
swer may  have  shown  that  he  has  sufficient  funds  in  his  hands 
for  the  purpose;  for  he  is  entitled  to  have  the  specific  sum 
for  which  he  is  held  named  in  the  order,  so  that  he  may 
readil}"  show  what  amount  of  credit  he  will  have  in  his  ac- 
count with  the  defendant.^  Such  general  judgment,  however, 
may  be  made  specific  upon  motion.'^  A  judgment,  in  such 
round  terms,  could  not  be  deemed  informal  or  vicious.  It 
could  hardly  ever  be  accurate  as  to  costs  at  that  stage. 

V.  Grahafei,  66  id.  102;  Walker,  Ex  <  Chicago  &  Alton   R.    R.  Co.  v. 

parte,  54  id.   577;  AUinan  v.  Owen,  Ragland,  84  111.  375. 

31  id.  167;  Pharr  v.   Reynolds,  3  id.  ^  go  held  in  Mississippi,  where  the 

521.  creditor  is  reqiiii'ed  to  give  bond   to 

1  Carter  v.  Koshland,  13  Oreg.  615.  the  garnishee  to  secure  payment  be- 

2  Bingham  v.  Lamping,  26  Pa.  St.  fore  judgment.  Murdockr.  Daniel, 
340.  58  Miss.  411. 

3  Bushnell  V.  Allen,  48  Wis.  460.  ^  See  Standard  Wagon  Co.  v. 
See  Johann  v.  Rufener,  32  id.   195 ;  Lowry  (Ga.),  19  S.  E.  989. 

Pierce  t'.  Railway  Co.,  36  id.  283.  '  Randolph  v.   Little,  62  Ala.  396. 


628  FINAL    JUDGMENT    AGAINST    GARNISHEE.       [§§  926,  927. 

II.  When  Yoid  or  Yoidable. 

§  926.  Void  judgment. —  If  the  original  attachment  served 
upon  the  garnishee  is  void,  the  order  against  him  thereunder 
is  so,  notwithstanding  judgment  obtained  against  the  princi- 
pal defendant.^  If  the  writ  be  valid,  but  the  defendant  has 
not  been  notified  of  the  attachment,  either  actually  by  service, 
or  constructively  by  publication,  any  judgment  against  a  gar- 
nishee in  such  attachment  case  would  be  void.-  In  all  cases, 
if  the  judgment  against  the  principal  defendant  is  null,  that 
against  the  garnishee  is  so;  ^  but  it  has  been  held  that,  though 
the  former  may  have  assigned  the  debt  due  him  by  the  gar- 
nishee, the  latter,  if  he  has  paid  under  a  judgment,  should  be 
protected  from  a  suit  subsequently  brought  against  him  by 
the  assignee;  and  that,  too,  even  if  he  had  had  notice  of  the  as- 
signment after  he  was  summoned  and  before  the  judgment.'* 
If  the  judgment  against  the  principal  defendant  is  reversed 
on  appeal,  that  against  the  garnishee  falls  with  it;  it  becomes 
an  absolute  nullity.^  Such  would  be  the  result  though  the 
minor  judgment  be  not  mentioned  in  the  decision  of  the  appel- 
late court,  and  though  the  garnishee  be  not  before  that  tri- 
bunal either  as  appellant  or  appellee.  If  a  judgment  in  favor 
of  the  defendant  is  reversed  on  appeal,  the  garnishee  becomes 
liable  to  the  plaintiff  for  paying  to  the  defendant  while  the 
appeal  was  pending.^ 

It  has  been  held  that  if  the  attachment  defendant  has  not 
been  made  a  party  to  an  ancillary  garnishment  proceeding  in 
which  the  garnishee  has  been  charged  and  has  acquiesced,  he 
cannot  move  for  a  new  trial  of  the  proceeding.^ 

§  927.  MistaliG  of  name. —  Proper  names,  as  well  as  com- 
mon, are  only  signs  of  ideas;  and  when  there  is  certainty  as 
to  the  person  meant,  an  error  in  designating  him  by  the  sign 
which  he  has  adopted,  or  which  was  bestowed  upon  him  by 
his  parents,  is  not  fatal  in  attachment  pleadings.     A  garnishee 

1  Greene  ZJ.  Tripp,  11  R.  I.  424.  niatheney  v.    Earl,   75  Ind.    531, 

2  Railroad  v.  Todd,  11  Heisk.  549.     and  cases  therein  cited. 

In  Iowa  the   defendant  must  be  no-  ■*  Newman    v.    Manning,    79    Ind. 

tified  ten   days   before  a  garnishee  218. 

can  be  condemned  to  pay  into  court.  ^  Clough  v.  Buck,  6  Neb.  343. 

la.  Code,  §  2975;  Williams  v.  Will-  6  Bryan  v.  Duncan,  19  D.   C.  379. 

iumf,  Gl'la.  G12.  7  foster  v.  Haynes,  88  Ga.  240. 


§  928.]  ^VHEX  VOID  or  voidable.  G20 

who  has  responded  to  a  summons  directed  to  him,  though  his 
right  name  was  not  in  the  direction,  cannot  enjoin  the  execu- 
tion on  the  ground  of  misnomer  in  the  summons  after  judg- 
ment has  been  rendered  against  him  in  his  right  name.^  lie 
might  have  moved  to  set  aside  the  service  of  summons  be- 
fore answering  or  submitting  to  a  rule  to  answer.^  Xor  can 
the  garnishee  shield  himself  behind  a  mistake  in  the  defend- 
ant's name,  and  pay  over  what  he  owes  to  him  after  having 
been  summoned  as  garnishee.  Even  if  the  error  existed  at 
the  time  the  summoned  garnishee  paid  to  the  defendant,  and 
its  correction  took  place  afterwards  and  no  notice  of  the 
change  from  the  wrong  appellation  to  the  right  was  given  to 
the  garnishee,  still  he  would  be  responsible  to  the  attaching 
creditor  if  the  latter  should  show  that  the  defendant  was  as 
well  known  by  the  one  name  as  the  other  and  that  the  gar- 
nishee knew  who  was  meant  by  the  designation  emplo3'ed.^ 

The  garnishee  has  no  right  to  object  to  the  amendment  of 
the  plaintiff's  affidavit  and  bond,  so  as  to  correct  misnomers 
and  like  mistakes,  if  the  defendant  is  in  court.'*  When  an 
attachment  suit  is  brought  by  a  firm,  the  partnership  desig- 
nation should  be  followed  by  a  disclosure  of  the  members' 
names.  The  omission  of  them  is  an  error  that  may  be 
amended.^ 

§  928.  YoidaMe  lyroceedings. —  Errors  and  irregularities  in 
the  proceedings  of  an  attachment  suit  in  which  the  court  has 
jurisdiction  cannot  be  successfully  set  up  by  the  garnishee  to 
avoid  a  judgment  against  himself.^  If  the  proceedings  are 
not  void  but  voidable,  the  defendant  may  reverse  them  upon 
appeal  or  writ  of  error  as  in  other  cases,  but  the  garnishee  is 
uninjured  if  he  is  made  to  pay  to  the  attaching  creditor,  and 
the  defendant  acquiesces,  however  irregular  such  jurisdic- 
tional proceedings  ma}^  be.  The  garnishee  cannot  assign  as 
error  mere  irregularities  in  the  judgment  against  the  princi- 
pal defendant,  but  he  may  assign  whatever  would  make  such 
judgment  void.^    He  may  have  a  judgment  set  aside  as  void 

1  Williams  v.  Hitzie,   83  Ind.   303.  <  Id. ;  Moore  v.  Davis,  58  Mich.  25. 

2  Bait.  &  O.  R.  R.  Co.  v.  Taylor,  81  5  Barber  r.  Smith,  41  Mich.  138. 
Ind.  24;  Whitney  v.  Lehmer,  26  id.  «Earl  v.  Matheney,  GO  Ind.  202. 
508;  Gould  V.  Meyer,  36  Ala.  565.  "Erwin   v.    Heath,    50    IMiss.    795. 

•)  Bait.  &  O.  R.  R.  Co.  v.  Taylor,  81  "When  the  garnishee  has  disclosed  in- 
Ind.  24.  debtedness  to  the  defendant  he  can- 


030  FINAL    JUDGMENT    AGAINST    GAKNISHEE.       [§§  929,  930. 

if  entered  against  himself   by  the  clerk   without  authority.^ 
And  there  may  be  arrest  of  judgment  for  fraud.- 

A  verdict  and  judgment  against  him  for  a  specific  sum  in 
an  attachment  in  execution  are  erroneous.^ 

§  929.  Errors  of  execution. —  Should  there  be  a  joint  judg- 
ment rendered  against  the  defendant  and  the  garnishee,  the 
latter  may  have  execution  set  aside  as  to  himself  by  means 
of  certiorari.  He  cannot  be  lawfully  made  a  general  defend- 
ant so  as  to  have  his  own  property  subjected  to  execution  for 
another's  debt.*  The  execution  against  him  ought  to  show 
that  it  is  limited  to  the  sum  which  he  has  been  ordered  to  pay 
into  court.  Should  the  officer  executing  the  writ  collect  more, 
he  ought  to  return  the  surplus  to  the  garnishee.^  To  condemn 
the  debtor's  debtor  as  though  there  were  solidarity  of  indebt- 
edness to  the  attaching  creditor  is  wholly  unjust  and  unwar- 
rantable. 

Indeed,  the  judgment  against  the  garnishee  is  rather  in 
favor  of  the  principal  defendant  than  against  him.  It  is 
really  a  judgment  in  favor  of  the  defendant  in  the  attachment 
suit,  for  the  use  of  the  plaintiff  therein.^ 

§930.  Premature  judgment. —  AYhen  judgment  has  been 
rendered  against  a  garnishee  prematurely,  before  any  has 
been  decreed  against  the  defendant,  it  should  be  set  aside  upon 
proper  application.'^  It  may  be  set  aside  on  other  grounds,  or 
its  execution  enjoined.  If  the  garnishee  shows  that,  without 
laches  on  his  part,  he  was  prevented  from  a  timely  appear- 
not  appeal  from  judgment  charging  and  any  balance  beyond  what  is  nec- 
him  on  the  ground  that  an  inter-  essary  to  satisfy  the  attaching  cred- 
venor  who  claimed  the  debt  has  itor  remains  for  the  benefit  of  the 
been  dismissed.  Alamo  Ice  Co.  r.  attacliment  debtor.  Ham  v.  Peery, 
Yancey,  6G  Tex.  187;  Germania  39  111.  App.  341 ;  Kern  v.  Chicago- 
Bank  V.  Peuser,  40  La.  Ann.  796.  Ass'n,  140  111.  371 ;  Webster  v.  Steele, 

1  Lee  V.  CarroUton  Savings  &  Loan  75  id.  544 ;  Chicago  &  Rock  Isl.  R.  R. 
Association,  58  Md.  801.  Co.  v.  Mason,  11  111.  App.  525.     The 

2  Corbin  v.  Goddard,  94  Ind.  419.     judgment  must  be  for  the  plaintiff, 

3  Bonnaffon  v.  Thompson,  83  Pa.  not  creditors  generally,  unless  they 
St.  460.  are  all  virtually  plaintiffs.     Ameri- 

-1  Masters  v.  Turner,  10  Phila.  482.  can  Bank  v.   Indiana  Banking  Co., 

5  Id.  114  111.483. 

6  In  Illinois  the  judgment  is  in  '  Bryan  v.  Dean,  63  Ga.  317.  Judg- 
favor  of  the  defendant  for  the  use  of  ment  entered  nunc  pro  tunc.  Cap- 
the  plaintiff,  when  rendered  against  ital  City  Bank  v.  Wakefield,  83  la. 
a  garnishee  in  an  attachment  suit ;  46. 


§931.]  WHEN   VOID    OK   VOIDABLE.  631 

ance,  and  that  he  could  have  set  up  a  good  defense,  and  that 
the  collection  of  the  amount  he  has  been  ordered  to  pa}'  would 
work  him  injiuy  and  injustice,  the  court  may  give  him  relief. 
Especiall}''  if  he  can  show  that  he  was  prevented  from  mak- 
ing a  timely  defense  b}^  the  fraud  of  the  plaintiff,  will  he  be 
entitled  to  have  the  order  set  aside.  Unavoidable  accident, 
too,  may,  in  the  discretion  of  the  court,  be  deemed  sufficient 
ground  for  vacating  the  order  and  allowing  the  garnishee  to 
make  answer  or  set  up  defense.^  He  was  denied  relief,  how- 
ever, in  one  instance,  after  having  sworn  to  answers  written 
out  for  him,  at  his  request  (by  the  clerk,  who  left  out  part  of 
what  he  had  been  directed  to  write),  though  he  supposed  the 
answer  complete  when  he  signed  it  and  swore  to  it.- 

§  931.  Release  of  garnisliee  on  defendant's  bond. —  The  princi- 
pal defendant  ma}^  have  the  garnishee  dismissed  by  giving  bond 
and  security.  This  may  be  done  either  before  or  after  judg- 
ment in  some  states,  as  in  Alabama.^  And  the  plaintiff  may 
sue  upon  the  bond  though  no  judgment  be  rendered  against 
the  garnishee.'*  Judgment  against  sureties  on  a  bond  to  dis 
solve  garnishment  cannot  object  to  the  condition  to  pay  any 
judgment  that  may  be  rendered  against  the  defendant  as  ad- 
ministrator, nor  can  they  object  that  the  judgment  was  against 
him  personally.  It  was  held  that  the  discharge  of  the  trustee 
Avas  consideration  sufficient  to  support  the  sureties'  obligation. 
As  that  obligation  was  conditioned  to  pay  any  sum  for  which 
the  trustee  may  be  charged,  the  bond  was  held  good  at  com- 
mon law  (it  was  not  statutor}'^), and  evidence  tending  to  show 
that  he  was  not  chargeable  was  ruled  out.^  Generally  speak- 
ing, judgment  against  the  sureties  on  a  garnishment  dissolu- 
tion bond  cannot  be  entered  when  the  garnishee  has  been 
discharged,  notwithstanding  the  literal  wording  of  the  bond, 
drawn  under  a  statute  repealed,  which  would  have  held  them.® 

1  Freeman  v.  Miller,  53  Tex.  372.  5  Ri(;]^  ^..  Sowles,  64  Vt.  408;  Cross 

^Lawton  v.  Branch,  62  Ga.  350.  v.  Richards,  80  id.  641,  as  to  thecon- 

■^Balkuni  v.  Reeves  (Ala.),  13  So.  sideration. 

524;  Ala.  Act  of  Feb.  12,  1891.  «*Linder  v.   Benson,    78   Ga.    116; 

^Balkum  v.  Strauss  (Ala.),  14  So,  Burke  v.  Hance,  76  Tex.  76. 
53.     See  Guilford  t'.  Reeves  (Ala.),  15 
So.  661. 


632  FINAL   JUDGMENT    AGAINST    GARNISHEE.       [§§  932,  933. 

III.    Inteeest,  when  Chargeable. 

§  932.  Interest-hearing  debt. —  When  the  garnishee  owes 
the  defendant  a  debt  bearing  interest,  he  is  liable  for  the  in- 
terest unless  prevented  from  paying  the  debt  by  the  garnish- 
ment. If  he  has  attachable  funds  in  his  hands  which  he  has 
put  at  interest,  he  is  liable  for  what  they  jield.  If  he  has 
property  attachable,  he  is  responsible  for  its  fruits  which  he 
gathers  after  notice.  If  he  uses  what  is  attached  in  his  hands 
in  his  general  business  so  that  it  is  not  distinguishable  from 
his  own  property  or  funds,  he  should  account  for  its  usufruct, 
if  practicable,  or  pay  legal  interest  on  the  amount  or  value. 

The  fact  of  his  being  in  receipt  of  interest  from  money,  or 
usufruct  from  property  attached  in  his  hands,  or  in  the  enjoy- 
ment of  an  interest-bearing  obligation,  must  be  made  to  appear, 
by  his  answers  or  otherwise,  to  render  him  chargeable  for  inter- 
est or  fruits.  His  contract  with  the  defendant,  the  note  which 
he  has  given,  the  character  of  their  relation  of  debtor  and  cred- 
itor under  the  law  and  the  usages  of  business,  generally  enable 
the  court  to  see  whether  it  is  just  to  charge  the  honestl}^- 
answering  garnishee  beyond  the  property  attached  or  the  prin- 
cipal sum  arrested  in  his  hands. 

§  933.  When  due  defendant. —  Whenever  the  defendant 
would  have  been  entitled  to  interest  had  no  attachment  been 
laid,  the  plaintiff,  in  a  successful  attachment  suit,  will  be  so  en- 
titled, so  far  as  interest  is  due  at  the  date  of  the  summons;  and 
he  will  be  entitled  to  such  interest  as  may  thereafter  accrue.^ 
Of  course  none  can  thereafter  accrue  if  the  arrest  in  the  hands 
of  the  garnishee  stops  interest  from  running  by  locking  up 
the  funds  in  his  hands  as  a  mere  holder  of  a  stake,  and  the 
garnishee  derives  no  benefit  b\"  using  what  is  legally  thus 
withheld  from  use. 

!Notes  not  matured,  bearing  interest  from  date,  acknowl- 

1  Huntress  v.  Burbank,  111  Mass.  vented  from  paying  the  debt  by  the 

213;  Bickford  v.   Rice,  105  id.  340;  garnishment.      Little    v.    Owen,    83 

Adams  v.  Cordis,   8  Pick.  260;  Ori-  Ga.   20;  Mackey  v.  Hodgson,  9  Pa. 

ental  Bank  v.  Insurance  Co.,  4  Met.  St.  468;  Clark  v.  Powell,  17  La.  Ann. 

1;  Baker  v.  Central  Vt.   R.  Co.,  56  177;  Cohen  v.  Insurance  Co.,  11  Mo. 

Vt.  302.     But  it  has  been  held  that  374.     Certainly  no  interest  after  he 

interest  should  not   be  required  of  has  paid  into  court.     Long  v.  John- 

the  ganrishee  for  the  time  he  is  pre-  son,  74  Ga.  4. 


§§  93i,  935.1  INTEREST,  WUEN    CHARGEABLE.  C33 

edged  by  the  garnishee  to  have  been  given  by  him  to  the  de- 
fendant and  to  be  of  an  unnegotiable  character,  and  to  be  still 
in  the  defendant's  hands,  since  no  notice  of  transfer  has  been 
given,  continue  to  bear  interest  after  the  summons  of  gar- 
nishment just  as  before,  and  the  interest  becomes  part  of  the 
ever-growing  debt  and  is  subject  to  the  attachment  like  the 
principal.^ 

§  934.  Not  lixible. —  "When  the  garnishee  is  ready  to  pay  the 
defendant  what  he  owes,  ready  to  pay  it  over  to  the  plaintiff 
whenever  ordered  to  do  so  b}"  the  court,  is  restrained  from 
using  what  he  holds  and  from  deriving  any  benefit  by  the 
holding,  and  is  an  honest  and  fair-dealing  respondent  to  inter- 
rogatories, he  is  not  chargeable  with  interest.  "When  the 
note  he  has  given,  or  the  contract  he  has  made,  or  the  obliga- 
tion he  has  in  any  way  incurred,  is  not  interest-bearing,  it 
cannot  be  made  of  different  character  by  the  mere  act  of  at- 
taching it. 

The  garnishee  is  not  supposed  to  make  any  use  of  the  money 
in  his  hands  from  the  time  of  summons  to  the  time  when  he 
pays  it  into  court  under  order,  and  therefore  he  owes  no  inter- 
est for  such  time.  Whatever  it  is  his  duty  to  do  he  must  be 
presumed  to  do.  Unless  such  presumption  is  rebutted,  he  can- 
not be  required  to  paj^  interest  on  funds  thus  held. 

§  935.  Exception  to  the  7'ule  of  non-liaMUty. —  There  is  an 
exception  to  this  presumption  when  the  money  ought  to  be 
deposited  in  court  when  attached,  but  is  held  by  the  garnishee 
till  after  final  judgment  against  the  defendant  and  till  an 
order  of  court  for  the  paying  over  of  the  funds  subjected  to 
garnishment.  And  in  case  the  garnishee  has  denied  the  pos- 
session of  funds  in  his  hands,  and  such  possession  has  been 
established  by  evidence  aliunde,  there  will  be  no  presumption 
that  he  held  the  funds  without  using  them  from  the  time  of 
summons  till  the  payment  into  court  under  order.  If  he  pre- 
vents the  pa3'ment  by  his  failure  to  answer  promptly  and 
fairly,  and  to  pay  over  when  ordered,  he  may  be  charged  with 
interest  during  the  delay.-     The  right  rule  is  that  he  should 

1  Interest  runs,  though  the  creditor  -  Chase  v,  Manhardt,  1  Bland  (Md.), 

has  attached  a  credit  of  defendant's  333;  Jones  v.  Bank,  99  Pa.  St.  317; 

in  his  own  hands.     Willing  v.  Con-  Rushton  v.   Rowe,  64  id.   63 ;  Jack- 

sequa,  Peters'  C.  C.  301.  son's  Ex'rs  v.  Lloyd,  44  id.  82;  Upde- 


634  FINAL    JUDGMENT    AGAINST    GAKNISHEE.       [§§  93G,  937. 

pay  interest  while  he  holds  the  defendant's  money  on  interest 
in  the  latter's  favor,  and  should  not  pay  any  after  he  has  put 
the  principal  into  court,  or  has  disclosed  and  has  been  ordered 
to  pay  over,  and  is  no  longer  using  the  money.^ 

§  936.  Faults  of  defendant —  Interest  by  way  of  damage 
caused  by  the  acts  or  omissions  of  the  defendant  are  not  charge- 
able against  the  garnishee.-  The  latter  is  chargeable  for  the 
interest  which  he  has  received,  and  also  for  such  as  he  has 
obligated  himself  to  pay.^  A  garnishee  under  a  void  process 
is  not  relieved  from  paying  interest  on  money  in  his  hands  to 
whom,  it  is  due;  especially  when  it  does  not  appear  that  such 
money  has  been  set  apart  to  answer  the  summons.*  The  suc- 
cessful defendant  should  not  lose  his  interest.^ 

IV.  Costs,  Fees  and  Compensation. 

§  937.  Costs  —  When  chargeahle. — It  is  a  hard  case  for  an 
innocent  and  frank-answering  garnishee,  totally  disinterested 
in  the  litigation  as  he  is,  to  be  mulct  in  costs.  Yet,  if  his  denial 
is  traversed,  and  witnesses  pro  and  coti  brought  in,  and  con- 
tinuances follow,  and  commissions  issue,  and  a  protracted  con- 
test between  him  and  the  plaintiff  ensue  (which  he  is  obliged 
to  encounter  or  suffer  wrong),  and  finally  he  be  adjudged  liable 
as  garnishee,  the  costs  may  exceed  the  fund  in  hand.  The 
hardship  in  any  such  case  clearly  appears  upon  the  reflection 
that  he  had  no  agency  w^hatever  in  provoking  the  litigation, 
no  chance  whatever  of  being  benefited  by  it  in  any  event, 
and  was  driven  to  defend  himself  by  way  of  protection  from 
being  wronged.  The  fact  that  he  is  finally  adjudged  liable  is 
no  justification  of  the  hardship;  for,  to  say  nothing  of  his  loss 
of  time  and  of  the  inestimable  annoyance  he  has  suffered,  he 

graff  V.  Spring.  11  S.  &  R.  188;  Nor-  69;  Work  v.  Glaskins,  33  Miss.  539; 
ris  V.  Hall,  18  Me.  332;  Georgia  Ins.  Candee  v.  Webster,  9  Ohio  St.  452. 
Co.   V.   Oliver,  1  Ga.  38;  Candee  v.         2  g^a^^gcot   Machine  Co.    v.    Par- 
Skinner,    40  Ct.    464 ;    Woodruff  v.  tridge,  5  Fos.  369. 
Bacon,  35  id.  97;  Moore  v.  Lowry,  25        » Abbott  v.  Stinchfleld,  71  Me.  213; 
la.  336.  Smith  v.   Flanders,    129   Mass.  322; 

iRoss  V.  Austin,  4  Hening  &  M.  Baker  v.  Railroad  Co.,  56  Vt.  302. 
(Va.),  502 ;  Tazewell   v.  Barrett,  id.         *  Hawkins  v.  Ga.  Bank,  61  ,Ga.  106, 
259 ;  Smith  v.  German  Bank,  60  Miss.        ^  Sickman  v.  Lapsley,  13  S,  &  R. 

224. 


§  938,]  COSTS,  FEES    AND   COMPENSATION.  635 

is  mulct  in  costs  for  no  fault  of  his,  even  thoufjh  the  court 
condemn  him  to  pay;  for  he  had  the  undoubted  right  to  de- 
fend himself. 

It  is  different,  so  far  as  concerns  the  hardship,  when  the 
garnishee  causes  the  traverse,  protracts  litigation  and  in- 
creases costs  by  his  own  fraud,  crookedness,  collusion  with 
defendant  and  other  reprehensible  courses.  In  such  case,  if 
finally  found  chargeable,  costs  are  not  too  much  of  a  punish- 
ment for  him.  He  is  never  chargeable  for  more  than  the 
plaintiff's  claim  and  costs,  though  his  obligation  to  the  de- 
fendant be  greater,^  except  when  the  form  of  judgment  is  in 
favor  of  the  defendant  against  the  garnishee  at  the  instiga- 
tion of  the  plaintiff.-  The  obligors  on  a  garnishment  bond 
are  not  bound  for  the  costs  of  the  main  action.^ 

§  938.  Entitled  to  costs  and  allowances. —  AYhere  the  prop- 
erty or  credit  subjected  to  garnishment  proves  sufficient  to 
pay  both  debt  and  costs,  the  garnishee's  costs  may  be  covered 
by  it,  as  usually  they  are.  It  is  but  just  to  tax  a  reasonable 
fee  for  the  garnishee's  counsel,  to  be  paid  with  the  rest  of  the 
costs  out  of  the  seized  and  subjected  property.  The  nice 
questions  of  jurisdiction  which  are  frequently  involved  in  at- 
tachment suits  render  counsel  indispensable  to  the  safety  of 
the  garnishee  in  making  payments  under  orders  of  court. 

The  rule  is  settled  that  the  garnishee  is  not  personally  lia- 
ble to  costs  when  he  acknowledges  indebtedness  or  possession 
of  the  defendant's  property  and  does  not  resist  the  garnish- 
ment.^ l\o  judgment  can  be  rendered  against  him  beyond 
the  amount  in  his  hands,  either  for  principal  or  costs.  On  the 
other  hand,  the  rule  is  pretty  general  that  he  is  liable  to  costs 
when  a  contest  ensues  between  him  and  the  attaching  cred- 
itor upon  his  denial  of  having  property  or  credits  of  the  de- 
fendant subject  to  execution,  if  he  fails  in  such  contest.^     So, 

^Tiaimons  v.  Johnson,  15  la.  23;  Wolf,  etc.   Co.   v.   Jackson,  66  Wis. 

Doggett  V.    Insurance   Co.,  19   Mo.  42.     See  White  v.   Kilgore,  78  Me. 

201;  Tyler  v.   Winslovv,  46  Me.  348.  323;  Jackson  v.   St.   Louis,  etc.   R. 

,      -Webster  v.   Steele,    75  111.    544;  Co.,   89  Mo.    104;  Schooler  v.   Als- 

Stahl  V.  Webster,  11  id.  511.  trom,  38  La.  Ann.  907. 

^Heimoth  v.  Le  Suer  (Tex.  Civ.  5  Strong  v.   Hollon,  39  Mich.  411; 

App. ),  26  S.  W.  523.  Webster  Wagon  Co.  v.  Peterson,  27 

4  Johnson   v.   Delbridge,  35  Mich.  W.  Va.  314. 
436;  Zimmer  r.  Davis,  id.  39;  Little 


636  FINAL    JUDGMENT    AG-AINST    GARNISHEE.       [§§  939-941. 

also,  if  he  does  not  respond  to  the  interrogatories,  fails  to  meet 
them  fairly  or  neglects  them  altogether.^ 

§  939.  So  long  as  the  litigation  is  confined  to  the  proper 
parties  the  third  person  questioned  cannot  be  put  in  a  worse 
position  than  he  was  before  the  summons  by  being  required 
to  pa}''  the  costs  of  the  proceeding  w^hich  brought  him  into 
court  on  other  people's  business.  The  reason  of  his  liability 
for  costs,  in  the  instances  above  mentioned,  is  that  he  himself 
needlessly  provokes  much  greater  costs  by  contesting  his  own 
liability  than  would  otherwise  arise  ;^  but  the  reason  seems  not 
well  founded,  for  he  would  never  have  given  rise  to  such  fur- 
ther costs  had  he  been  let  alone.  He  is  not  the  original 
instiofator  of  the  contest  between  himself  and  the  attaching 
creditor.  He  tries  to  protect  himself  without  possible  further 
benefit. 

§  940.  The  garnishee  who  has  not  made  an  issue  is  entitled 
to  costs.^  He  is  as  much  entitled  as  a  mere  witness;*  and  when 
the  character  of  litigant  is  forced  upon  him,  the  court  ought 
to  allow  him  reasonable  costs.  Always  w-hen  the  judgment 
is  in  his  favor,  after  his  litigation  upon  an  issue,  he  is  entitled 
to  his  costs.  And  when  it  is  against  him,  the  court  may 
award  him  costs  ;^  for  it  may  be  no  fault  of  his,  but  rather  a 
duty,  to  test  the  question  of  his  liability  under  many  con- 
ceivable circumstances.  Costs  were  allowed  to  a  garnishee, 
who  was  summoned  and  who  appeared  and  answered,  though 
meanwhile  the  case  had  been  abandoned  by  the  plaintiff." 
Though  entitled  to  costs  and  mileage,  he  cannot  withhold  his 
answer  till  they  have  been  paid.'' 

§  941.  Attorney's  fees  and  compensation. —  As  a  general 
rule  a  fair-dealing  garnishee,  whether  he  makes  an  issue  or 
not,   ought   to   be   allowed   attorney's   fees,^   costs    and   ex- 

iConant  v.   Burns  (N.  H.),  19  A.  etc.  R.  Co.,   60  Fed.   43;  Ga.   Code, 

11;  Randolph  v.   Heaslip,  11   la.  37.  §3549. 

2  Lucas  V.  Campbell,  88  111.  447.  *  Washburn  v.  Clarkson,  123  Mass. 

3Cuny  V.  National  Bank  of  Au-  319. 

gusta,  53  Ga.  28;  Hammett  v.  Mor-  5  stong  i?.  Hollon,  39  Mich.  411. 

ris,  55  id.  644.     See  Selz  v.  Atkin-  e  Duffee  v.    Call,    123   Mass.    318; 

son   Bank,    55  Wis.    225;     Clark  v.  Brown  v.  Seymour,  1  Pick.  32. 

Gresham,  67  Miss.  203;  Mechanics',  '^  Stock berger  v.    Lindsey,    65    la. 

etc.  Bank  v.    Glaser,    40  Mo.   App.  471. 

371;    Rome    R.    Co.    v.    Ricimiond,  8  Griffith  v.  Stockmuller,  14  Philo. 


§§  942,  943.]       COSTS,  fees  and  compensation.  637 

penses^  and  reasonable  compensation.  ^  And  when  he  has 
been  allowed  them,  he  may  sue  to  recover  them  of  the  plaint- 
iff on  the  attachment  bond.'^ 

It  was  held  that  the  costs  of  the  attachment  proceedings 
should  be  paid  out  of  the  fund  brought  into  court  by  the  gar- 
nishee who  was  indebted  not  only  to  the  defendant  but  also 
to  the  interpleaders.*  But  he  cannot  pay  his  counsel  fees  out 
of  that  fund,^  unless  they  have  been  taxed  as  costs  and  ordered 
to  be  paid  out  of  it. 

§  942.  The  garnishee  is  entitled  to  discharge  and  to  an  al- 
lowance of  his  costs,  where  there  has  been  an  abuse  of  pro- 
cess, undue  delay  in  bringing  in  the  principal  defendant,  or 
other  injurious  acts  or  laches  of  the  attaching  creditor.^  But 
if  he  has  answered  denying  indebtedness  and  is  troubled  no 
further,  he  would  not  be  entitled  to  any  costs  at  subsequent 
terms  of  court  with  the  case  still  pending,  though  the  defend- 
ant does  not  appear  to  protect  himself.^  If  the  case  requires 
attention,  however,  in  order  to  prevent  a  wrongful  order  on 
such  answer,  and  the  garnishee  is  obliged  to  keep  counsel  em- 
ployed to  protect  his  rights,  he  ought  to  be  allowed  costs  and 
attorney's  fees  in  such  subsequent  terras.  Such  allowances, 
when  not  authorized  by  statute,  are  within  the  discretion  of 
the  court.^  And  all  legal  charges  on  property  surrendered 
should  be  allowed.^ 

§  943.  Costs,  etc.,  when  garnishee  is  discharged. —  Where 
there'  is  a  rule  to  show  cause  why  judgment  should  not  be 
rendered  against  the  garnishee,  a  failure  of  the  plaintiff-in-rule 
to  appear  at  the  time  appointed  for  its  hearing  is  good  ground 
for  a  motion  b}'^  the  garnishee  that  the  garnishment  be  discon- 

236 ;  Curtis  v.  Ford,  78  Tex.  262,  269 ;        2  Lackett  v.  Rumbaugh,  45  Fed.  27. 

Willis  i\  Heath,  75  id.  124;  Johnson  And  see  cases  just  cited  above. 
V.  Blanks,  68  id.  495.  » State  v.  Immer,  52  Mo.  App.  536. 

1  National  Bank  v.  Brainard,  65  Vt.        *  Baker  v.  Lancashire  Ins.  Co.,  53 

291 ;  Senior  v.  Brogan,  66  Miss.   178 ;  Wis.  193. 

Bernheim  v.  Brogan,  id.  179;  Clark  ^  ^^fja^^g  y^  Penzell,  40  Ark.  531. 
V.  Gresham,  07  id.  203;  Darnall  v.  6  Xoble  r.  Bourke,  44  Mich.  193. 
Wood,  82  Ga.  556 ;  Steele  v.  Thonip-        "  Hawkins  v.   Graham,    128  Mass. 

son,  38  Mo.  App.  312 ;  State  v.  Bick,  20. 
36  id.  114;  Keating  v.  Refrigerator        8  ij. 

Co.,  32  id.  293;  Moore  v.  Reed,  84        9  Williamson  v.    Gayle,    7  Gratt. 

Ga.  658;  Wengert  v.  Bowers,  8  Pa.  152. 
Co.  Ct.  292. 


638  FINAL   JUDGMENT    AGAINST   GARNISHEE.  [§  944. 

tinued  or  the  plaintiff-in-rule  nonsuited.^  And  if,  after  the 
garnishee  has  been  discharged  under  such  circumstances,  the 
defendant  should  assign  his  property,  the  subsequent  appear- 
ance of  the  plaintiff  and  the  garnishee  could  not  affect  the 
vested  rights  of  the  assignee;  and  this  would  be  true  though 
the  assignment  be  made  on  the  same  day  as  the  writ  of  gar- 
nishment.- If  the  plaintiff  commits  laches  by  delaying  unrea- 
sonably to  take  the  garnishee's  deposition,  the  latter  may  be 
discharged;^  so,  also,  if  he  fails  to  bring  the  principal  defend- 
ant into  court  by  reason  of  his  own  neglect.*  When  the  gar- 
nishee is  discharged,  the  costs  fall  on  the  plaintiff;  when 
charged,  upon  the  defendant  or  the  property  or  fund  attached, 
if  there  is  final  judgment  for  the  plaintiff.* 

Y.  Garnishment  in  Execution. 

§944.  Notice. —  A  notice  of  garnishment  to  aid  execution 
should  contain  the  names  of  the  parties  and  state  the  judg- 
ment and  the  amount  to  be  collected  of  the  garnishee.^  It 
has  been  held  that  omission  to  state  the  judgment  maj'^  be 
supplied  by  way  of  amendment.^  These  requisites  of  the 
notice  are  for  the  information  of  the  garnishee;  not  for  the 
court;  for  when  cases  against  garnishees  are  to  enforce  judg- 
ments against  principal  debtors,  the  court  will  take  judicial 
notice  of  the  judgment  rendered  by  it  without  profert.^ 

1  Wilcox  V.  Clement,  4  Den.  162 ;  5  When   the  garnishee    has    been 

McCarty    v.    McPherson,  11  Johns,  charged  on   his  own  disclosure,  he 

407;  Shufelt  v.  Cramer,  20  id.  309;  cannot  recover  counsel  fees  of  the 

Barber    v.    Parker,    11   Wend.    52;  plaintiff  under    the  Texas   statute. 

Stadler  v.  Moors,  9  Mich.  264;  Red-  Llano,  etc.  Co.   v.  Castanola  (Tex.), 

man  v.  White,  25  id.  526;  Brady  v.  23  S.  W.  1016. 

Tabor,  29  id.  199.  In  Michigan  judg-  ^  Walton  v.  Sharp,  11  Lea,  578.  In 
ment  of  nonsuit  must  be  entered  if  Pennsylvania  a  garnishment  to  aid 
plaintiff  fail  to  appear.  Johnson  v.  execution  may  be  served  on  an  ex- 
Dexter,  88  Mich.  695.  ecutor,  to  subject  a  legacy,  as  an  or- 

-  Johnson  v.  Dexter,  38  Mich.  695.  dinary  summons  is  served.    Purves 
When   the   discharge    is    judicially  v.  Lex  (Pa.),  9  A.  167. 
questioned    in   subsequent  proceed-  ^  Memphis,  etc.  R.  Co.  t;.  Whorley. 
ings,  the  motion  to  discharge  may  74  Ala.   264.     See  Whorley  v.  Mem- 
be  proved  and  admitted  in  evidence,  phis,  etc.  R.  Co.,  72  Ala.  20. 
Lenhoff  v.  Fisher,  32  Neb.  107.  «  Kenosha  Stove  Co.  v.  Shedd,  82 

3  Demeritt  v.  Estes,  56  N.  H.  313.  la.  544;  States.  Schilling,  14  id.  455; 

*  Noble  V.  Bourke,  44  Mich.  193.  Farrington  v.  Sexton,  43  Mich.  455; 


§§945,946.]  GARNISHMENT    IX    EXECCTION.  G39 

§  945.  Practice  in  California. —  There  is  a  statutory  pro- 
ceeding in  California  in  lieu  of  garnishment  in  execution. 
The  judgment  plaintiff,  on  showing  that  a  third  person  owes 
the  defendant  more  than  fifty  dollars,  obtains  an  order  that 
such  person  be  cited  to  appear  and  answer  the  debt.  If  the 
debt  is  acknowledged  it  is  paid  into  court  and  applied  to  the 
judgment.  If  not,  the  court  authorizes  the  plaintiff  to  sue 
such  person  for  the  debt.^  This  proceeding  is  a  substitute  for 
a  creditor's  bill.^ 

§940.  Order  to  imy. —  The  effect  of  an  order  of  court  di- 
recting that  the  garnishee  in  execution  shall  pay  into  court 
the  moue}''  which  he  admits  to  be  due  the  defendant  is  to  sub- 
ject such  sum  to  the  satisfaction  of  the  attaching  creditor's 
judgment.  In  such  case  the  third  person  suffers  no  wrong. 
But  in  case  he  should  deny  indebtedness,  he  could  not  be  law- 
fully ordered  to  pa}'  anything  into  court  unless  his  denial  has 
been  overborne  b}'^  counter-testimon^^  In  order  to  such  result 
there  would  be  necessity  for  a  trial;  and,  in  such  case,  the 
third  person  denying  indebtedness  ought  to  have  as  much 
latitude  of  defense  as  he  would  have  in  a  suit  by  the  defend- 
ant in  the  attachment  suit  brought  directly  against  him. 
Should- such  ancillary  suit  be  allowed?  Its  allowance  is  not 
universal,^  and  when  it  is  permissible  the  tendency  is  to  con- 
fuse the  subordinate  wath  the  principal  issue. 

A  garnishee  in  execution,  denying  indebtedness,  cannot  be 

State  V.  Bowen,  16  Kan.  475;  Far-  ^Xn  Kansas,  where  the  garnishee 
rar  v.  Bates,  55  Tex.  193.  In  Illinois  in  execution  denies  indebtedness,  lie 
garnishment  in  execution  will  not  cannot  be  subjected  to  trial,  judg- 
lie  in  a  circuit  court  on  a  judgment  ment  and  execution  in  the  attach- 
in  the  court  of  a  justice  of  the  peace,  ment  proceeding,  but  the  attaching 
Hughes  V.  Bank,  47  111.  App.  567.  creditor  can    subject  to   execution 

1  Cal.  Academy  of  Sciences  v.  what  the  garnishee  owes  to  defend- 
Fletcher,  99  Cal.  207.  ant  only  by  a  direct  suit  against  the 

2  Id. ;  High  v.  Bank,  95  Cal.  386 ;  garnishee.  Board  of  Education  v. 
Habericht  v.  Lissak.  78  id.  327 ;  Bank  Scoville,  13  Kan.  32 ;  Arthur  v.  Hale, 
V.  Robinson,  57  id.  523;  McCulIough  G  id.  165;  Atlantic  &,  Pacific  R.  R. 
r.  Clark,  41  id.  302;  Adams  I'.  Hack-  Co.  v.  Hopkins,  94  U.  S.  11.  In 
ett,  7  id.  201 ;  Lynch  v.  Johnson,  48  Georgia  the  plaintiff  in  an  eject- 
N.  Y.  33;  Grahan  v.  Railroad  Co.,  10  ment  suit  may  have  pi'ocess  of  gar- 
Wis.  459;  Hexter  v.  Clifford,  5  Colo,  nishment  in  aid  of  his  count  for 
168;  Lathrop  V.  Clapp,  100  Am.  Dec.  mesne  profits.  Walker  v.  Zorn,  56 
501,  note.  Ga.  35. 


610  FINAL   JUDGMENT    AGAINST    GARNISHEE.  [§  947. 

compelled  to  pay  unless  the  plaintiff  institutes  action  and  gets 
judgment  against  him.^  But  ^Yhen  he  admits  it  there  should 
be  simply  an  order  to  pay  —  not  a  personal  judgment.^  This 
may  be  followed  by  execution  against  the  garnishee.^ 

"When  an  execution  has  been  returned  nulla  l)ona  the  attach- 
ment is  abandoned.^  It  is  equivalent  to  a  return  that  no 
attachment  has  ever  existed,  since  there  could  have  been  none 
if  no  property  is  found  for  it  to  rest  upon.  True,  goods  may 
have  been  attached  but  destroyed  before  time  for  execution. 
If,  for  any  reason,  no  lien  has  been  perfected  by  judgment, 
the  attachment  suit  is  at  an  end.  But  if  a  valid  personal  judg- 
ment has  been  rendered,  it  may  be  executed  like  any  other 
personal  decree;  and,  to  this  end,  a  debtor  of  the  judgment 
defendant  may  be  garnished  at  this  stage,  and  service  may  be 
had  upQn  him  anywhere  in  the  state.^  It  is  like  tlie  summons 
of  a  witness,  which  may  be  served  in  any  county. 

§  94:7.  Defense. —  If  the  defendant  has  satisfied  the  judg- 
ment, that  fact  may  be  pleaded  successfully  by  the  garnishee 
in  execution.^  The  dissolution  of  the  attachment,  or  the  com- 
pletion of  the  execution,  or  anything  that  terminates  the 
plaintiff's  proceedings  against  the  defendant  when  not  per- 
sonally bound,  may  be  set  up  by  the  garnishee  as  a  discharge 
of  himself.^  The  garnishee  in  execution  may  plead  want  of 
service  upon  the  principal  defendant.^  If  no  execution  has 
been  issued  and  served,  the  garnishment  is  inoperative.^  He 
may  avail  himself  of  whatever  renders  the  judgment  nugatory 
in  the  main  action;^"  or  he  may  waive  irregularities.  He 
waives  the  irregularities  of  the  execution  when  he  discloses 
his  indebtedness  without  objection."    He  may  qualify  his  dis- 

iHartman  v.  Olvera,   51  Cal.  501.  Thompson  v.  Wallace,   3   Ala,    132; 

See  Wolflf  V.  Bank  of  Commerce,  10  Price  v.  Higgins,  1  Littell,  274. 

Mo.  App.  586;  St.  Louis,  etc.  R.  Co.  niitchell  v.  Watson,  9  Fla.   160; 

V.  Richter,  48  Ark.   849;  Wingfield  Ridlon  v.  Cressey,  65  Me.   128;  Mc- 

V.  McLure,  id.  510;  Ark.  Civ.  Code  Eachin  v.  Reid,  40  Ala.  410. 

Proc,  §  224,  as  amended  in   1S71 ;  ^Cotar.  Ross,  66  Me.  161. 

Mansf.  Dig.,  §  317.  9Hower  v.  Ulrich,  156  Pa.  St.  410. 

2  Clark  V.  Foxworthy,  14  Neb.  241.  lo  gtreissguth  v.  Reigelman,  75  Wis. 

3De  Witt  V.  Kelly,  18  Oreg.  557.  212;  Healy  v.  Butler,  66  id.  9. 

4  Butler  V.  White,  25  Minn.  432.  ^i  Carey  v.  Brinton,  6  Houst.  (Del.) 

5 Toledo  R.  R.  Co,  v.  Reynolds,  73  340.     His  denial  maybe  outweighed 

111.  487.     But  see  Marqueze  v.    Le  by  his  facts  stated.     White  v.  Kahii 

Blanc,  29  La,  Ann,  194,  (Ala.),  15  So.  595. 

^Hammett  v.  Morris,  55  Ga.  644; 

( 


§§  94'^,   OiO.]  GARNISHMENT    IN    EXECUTION.  Gil 

closure  by  showing  offsets  due  him,  and  whcatever  diminishes 
his  obligation  to  the  principal  defendant,  as  he  may  when  gar- 
nished before  judgment. 

§  9-48.  A  judgment  creditor,  by  garnishing  the  officers  of  a 
railroad  company,  may  subject  to  execution  the  net  income 
of  the  road  between  the  date  of  a  mortgage  foreclosure  and 
that  of  the  appo-intraent  of  a  receiver,  if 'the  decree  of  fore- 
closure is  silent  as  to  such  income,  and  if  the  road  is  run  bv  the 
company  during  the  interval  mentioned,  if  the  trustees  under 
the  mortgage  never  had  possession  nor  claimed  the  income.' 

Receivers  of  a  railroad  company,  appointed  by  a  federal 
court,  may  be  garnished  in  a  state  court  for  a  debt  incurred  by 
them  while  operating  the  road  under  their  appointment.  J^o 
execution  issues,  but  the  federal  court  orders  the  payment  in 
the  receivership  proceedings.'^ 

A  co-defendant,  after  judgment  in  sob'do,  cannot  be  gar- 
nished in  execution;  an  exception  to  such  garnishment  should 
be  sustained.*  The  proper  course  is  to  issue  a  direct  execu- 
tion against  the  property  of  either  of  the  judgment  debtors. 
It  has  been  held  that  choses  in  action  cannot  be  reached  bv 
garnishment  in  execution;''  and  that  a  partnership  interest  in 
firm  property  cannot  be  thus  reached.^  A  judgment  creditor 
may  aid  execution  by  garnishment  if  there  has  been  a  fraud- 
ulent conveyance  by  the  judgment  debtor  to  the  garnishee.® 

§  949.  JExami nation. —  The  practice  of  examining  garnishees 
after  an  unsatisfactory  answer,  under  an  order  of  court  or 
under  statutory  authority,  after  judgment  against  the  defend- 
ant, is  similar  to  that  of  examining  them  before  judgment.  It 
is  therefore  unnecessary  to  repeat  what  has  been  said  on  this 
subject.     The  same  rule  holds  as  to  contingent  liability.'^ 

iGilman  v.  Ill,  &  Miss.  Tel.  Co.,  1  oBirtwhistle  v.  Woodward,  17  Mo. 

McCrary,  C.  C.  170;  Miss.  R.  R.  Co.  App.  277;  Fentonv.  Block,  10  id.  536. 

V.  U.  S.  Express  Co.,  81  111.  534.  6 Id. ;  St.  Louis,  etc.  Co.  v.  Cronin, 

2  Irwin  v.  McKechnie  (Minn.),  59  40  Mo.  App.  586;  Lackland  i\  Gar- 

N.  W.  987.  esche,  56  Mo.  367 ;  Potter  v.  Stevens, 

3Baily  t\  Lacey,  27  La.   Ann.  39;  40  id.  591;  Armstrong  v.  Tuttle,  34 

Richardson  v.   Lacey,   id.    62.     See  id.  432. 

Curry  v.  Woodward,  50  Ala.  258.  ^  Patterson  v.  Caldwell,  124  Pa.  St. 

*Gilmore  v.  Carnahan,  81  Pa.  St.  455;  Day  v.   Insurance  Co.,  Ill  id. 

217.  507. 
41 


642  FINAL   JUDGMENT   AGAINST   GARNISHEE.      "  [§  950. 

The  position  of  the  garnishee  being  that  of  a  party  to  a  side 
issue  —  not  that  of  a  witness  in  the  main  case  —  a  wife  who 
has  denied  indebtedness  to  her  husband  in  reply  to  statutor}'- 
interrogatories  may  be  further  examined  with  the  view  of 
charging  her  as  garnishee  in  a  suit  against  him.  While  she 
could  not  be  made  a  witness  against  him,  she  may  be  examined 
in  the  capacit}^  of  garnishee  though  the  result  be  her  con- 
demnation to  pay  into  court  what  she  owes  him,  or  deliver 
what  property  of  his  she  holds,  in  aid  of  the  plaintiff's  writ  of 
execution. 

§/950.  Could  she  shield  herself  from  further  examination 
after  having  denied  liability  in  answering  the  statutory  ques- 
tions, she  might  thus  interpose  the  sanctity  of  the  marital 
relation  to  the  defeat  of  the  ends  of  justice.  Her  husband, 
being  already  adjudged  the  debtor  of  the  plaintiff,  should  in 
good  conscience  permit  the  execution  of  the  judgment  against 
any  propert}'^  or  credit  of  his  not  exempt  from  execution.  His 
wife,  by  failing  to  disclose  any  such  property  in  her  possession 
or  credit  due  him  from  her,  would  not  be  in  the  position  of 
one  refusing  to  testify  in  a  cause  pending  against  her  husband, 
but  in  that  of  one  impeding  the  execution  of  a  judgment 
already  obtained. 

Upon  refusal  to  answer  further  questions  duly  propounded, 
a  wife  may  be  charged  as  garnishee  in  execution  of  a  judgment 
rendered  against  her  husband,  just  as  any  other  garnishee  may 
be  charged  on  refusal ;  but  if,  instead  of  insisting  upon  an  order 
so  charging,  the  plaintiff  should  cite  the  garnishee  to  reappear 
for  another  examination,  he  would  be  understood  to  waive  his 
right  to  have  her  charged  upon  her  first  refusal.^  Such  waiver 
would  be  implied  in  the  case  of  any  garnishee. 

1  Thompson  v.  Silvers,  59  Iowa,  answered  the  statutory  questions 
670,  in  exposition  of  section  2984  of  and  that  she  could  not  be  required 
the  Iowa  Code  (see  McCIain's  Stat.),  to  testify  against  her  husband,  the 
providing  that  if  the  garnishee  fail  judgment  debtor.  The  lower  court 
to  appear  and  answer  the  interroga-  having  sustained  these  grounds,  the 
tories  without  sufficient  excuse  he  appellate  court  remanded  the  case 
shall  be  presumed  to  be  indebted  to  and  required  her  to  answer.  The 
the  defendant  to  the  full  amount  of  reasoning  on  the  wife's  position  as 
the  plaintiff's  demands.  In  this  case  garnishee,  distinguishing  it  from 
the  garnishee  appeared,  but  failed  to  that  of  a  witness  against  her  bus- 
answer  the  additional  interrogatories  band,  seems  to  be  of  general  applica- 
on  the  grounds  that  she  had  already  tion. 


§§  951,  952.]  garnishee's  pleas.  643 

VI.  Garnishee's  Pleas  in  Defense  of   Subsequent  Suit  by 
THE  Attachment  Defendant. 

§  951.  Pendency  of  garnisliment  iwoceecUncjs  pleaded  in 
abatement. —  If  the  garnishee  is  sued  by  his  creditor  (the  at- 
tachment defendant)  after  he  has  been  summoned  but  before 
he  has  paid  into  court,  when  the  judicial  requirement  that  he 
so  pay  is  not  yet  ordered  and  is  therefore  uncertain,  he  may 
meet  the  demand  by  a  plea  in  abatement.  He  cannot  plead 
in  bar  at  this  stage.^  He  ought  to  have  (and  is  entitled  to) 
delay  till  the  result  of  the  garnishment  proceedings  be  reached, 
when  he  either  will  have  been  discharged  so  as  to  be  free  to 
confess  judgment  or  defend,  or  will  have  been  obliged  to  pay 
into  court  and  thus  furnished  with  a  good  plea  in  bar  to  his 
creditor's  action.  The  right  to  plead  garnishment  in  abate- 
ment during  the  pendency  of  the  proceedings  is  established 
by  man}'  decisions.-  If  one  is  garnished  in  a  federal  court 
he  may  plead  it  in  abatement  of  a  direct  action  against  him 
in  a  state  court.^ 

§  952.  Pendency  o/jtrior  suit  pleaded  i7i  garnishment  pro- 
ceedings.—  When  the  garnishee  has  been  sued  by  his  own 
creditor  before  his  garnishment,  he  should  disclose  the  fact. 
As  the  garnishment  cannot  atfect  the  prior  suit,*  it  ought  to 
be  dismissed  unless  the  garnishee  can  plead  it  in  that  suit.* 
Such  suit  does  not  relieve  the  garnishee  of  all  eventual  liabil- 

iShealy  v.  Toole,  56  Ga.  310.  23  id.   678;    Morton  v.  Webb,  7  id. 

2  Yazoo  R.  Co.   V.   Fulton,  supra  123;  Carroll??.  McDonough,  10  Mar- 

(disapproving    in    part    Kellogg   v.  tin  (La.),  609;  Piersonr.  McCahill,  21 

Freeman,    50  Miss.    127);    Howe  v.  Cal.   132;    McFadden  v.   O'Donnell, 

Tefft,  15  R.  I.  477,480;  Aldrich  v.  18  id.  160;  Lynch  v.   Hartford    Ins. 

Etna  Co.,  8  Wall.  491 ;  White's  Bank  Co.,  17  Fed.  637.     See  Clark  v.  Great 

V.  Smith,  7   id.    646;    Grosslight  v.  Barrington.  11  Pick.  260. 

Crisup,  58  Mich.  531 ;  Near  v.  Mitch-  3  gut  see  McRee  v.  Brown,  45  Tex. 

ell,  23  id.  383;  Haselton  v.  Monroe,  503. 

18  N.  H.   598;    Evans  v.  Matlock,  8  nVood  v.  Lake,  13  Wis.  84;  Noycij 

Phila.  271;    Mars  v.  Virginia  Co.,  17  v.   Foster,  48   Mich.    273;  Custer  u. 

S.    C.    514;    Embree    v.    Hanna,   5  White,  49  id.  263 ;  Kidd  r.  Shepherd, 

Johns.    101;    Crawford  v.    Slade,  9  4    Mass.    238.       See    McCaffrey    v. 

Ala.  887;    Montgomery  Gas  Co.   v.  Moore,   18  Pick.   492,  and  Locke  v. 

Merrick,  61  id.   534  (compare  Craw-  Tippets,  7  Mass.  149. 

ford  V.  Clute,  7  Ala.  157);  Winthrop  5  Thayer  v.  Pratt,  47   N.    H.    470; 

V.  Carleton,   8  Mass.   456;'  Jones  v.  Wadsworth    r.    Clark,    14  Vt.    139. 

W^ood,  30  Vt.  268 ;  Spicer  v.  Spicer,  See  Smith  v.  Barker,  10  Me.  458. 


64:4:  FINAL    JUDGMENT    AGAINST    GARNISHEE.  [§  953. 

ity.^  If,  after  disclosing  the  fact  of  the  pendency  of  the  suit, 
he  becomes  charged  in  garnishment  and  made  to  pay,  he 
ought  to  have  credit  on  any  subsequent  judgment  rendered 
against  him,  as  above  shown. 

Should  judgment  be  rendered  against  him  in  a  suit  b}'  his 
creditor  (the  attachment  debtor)  while  the  garnishment  pro- 
ceedings are  pending,  and  should  he  be  afterwards  made  to 
pay  into  court  as  garnishee,  he  may  have  relief  from  his  cred- 
itor's judgment  in  a  court  of  equity.^ 

§  953.  Payment  in  garnishmoit  procGedings. —  The  attach- 
ment debtor  cannot  destroy  or  impair  any  right  which  the  at- 
tachment creditor  has  obtained,  by  suing  the  garnishee  after 
final  judgment  sustaining  the  garnishment;  nor  can  he  thus  re- 
lieve the  latter  from  liability  to  the  garnishor.''  He  cannot  suc- 
cessfully sue  upon  the  same  debt  which  has  been  adjudicated  b}'- 
the  garnishment  judgment,  nor  for  the  same  property  thus  ad- 
judicated, when  payment  or  delivery  have  followed.^  If  gued 
upon  the  same  debt  by  the  attachment  debtor,  the  garnishee 
may  set  up  the  judgment  and  payment.  If  sued  in  the  court 
where  the  judgment  was  rendered,  it  will  be  within  judicial 
cognizance.^  •  But  it  has  been  held  that  though  the  o-arnishee 
has  been  charged  on  his  own  disclosure,  and  directed  to  pay 
into  court,  yet  in  a  subsequent  suit  against  him  the  order  of 
court  is  not  conclusive  that  he  was  liable  when  first  notified 
of  the  garnishment.'^ 

i-SfeeCrabb  v.  Jones,  3  Miles,  130;  223;    Adams  v.  Filer,   7  Wis.    306; 

Leiberu.  St.  Louis  Ass'n,  36  Mo.  382;  Ross  v.  Pitts,  39  Ala.  606;  Gunn  v. 

Thrasher  v.  Buckingham,  40  Miss.  Howell,  35   id.   144;   Allen  v.  Watt, 

67.  79  111.  284;  Anderson  v.  Young,    21 

2  Allen  V.  Watt,  79  111.  284.  As  to  Pa.  St.  443;  Ladd  v.  Jacobs,  64  Me. 
relief  in  a  court  at  law  to  protect  347;  Brown  v.  Dudley,  33  N.  H. 
himself    from    an    erroneous  judg-  511. 

ment  in  favor  of  the  garnishor,  see  ^  Kelly   v.    Gibbs  (Tex.    Sup.),    19 

Carroll  v.  Parkes,  57  Tenn.  269.  S.  W.  563. 

3  Ellis  V.  Goodnow,  40  Vt.  237;  «Hollingsworth  v.  Fitzgerald,  16 
Webster  v.  Adams,  58  Me.  317;  Neb.  492  {distivguissliing  Schleuter 
Hooton  V.  Gamage,  11  Allen,  354.  v.  Raymond,  7  Neb.  281;  Wilson  v. 

^Greenman  v.  Fox,  54   Ind.    267;  Burney,  8  id.  39;  Turpin  v.  Coates, 

Ohio  &  Miss.  R.  R.  Co.  v.  Alvey,  43  12  id.  321,  and  Clark  v.  Foxworthy, 

Ind.  180;  Barton  v.  Albright,  29  Ind.  14   id.  241);    Board  of  Education   r. 

489;  Schoppenhaust  v.  Bollman,  21  Scoville,   13  Kan.  17;  Rice  v.  Whit- 

Ind.  280;  Shetler  v.  Thomas,  16  Ind.  ney,  12  Ohio  St.  358. 


§  954.]  garnishee's  pleas.  645 

§  954.  Plea  in  Mr.—  The  garnishee  who  has  been  legal)}'' 
ordered  to  surrender  his  possession  of  the  attachment  de- 
fendant's property  to  the  court,  or  to  pay  into  court  the  debt 
he  owes  him,  and  who  has  complied  with  the  orderj  is  acquitted 
of  his  obligation  to  the  defendant.  A\^hen  he  has  been  law- 
fully summoned,  and  has  honestly  disclosed  his  indebtedness 
or  possession  of  liable  property  at  the  date  of  service  (or  at 
any  subsequent  time  where  that  is  sufficient)  to  a  court  hav- 
ing jurisdiction,  and  all  things  have  been  done  pursuant  to 
statute,  and  he  has  not  onl}^  been  adjudged  to  pay  as  gar- 
nishee but  has  actually  paid  as  ordered,  he  may  meet  a  sub- 
sequent suit  by  his  former  principal  or  creditor  by  setting  up 
the  judgment  and  payment  in  bar  of  the  action.  He  has  paid 
or  delivered  what  the  court  has  applied  to  the  satisfaction  of 
one  who  has  been  subrogated  to  the  rights  of  the  attachment 
debtor.^  That  debtor  has  been  adjudged  to  owe  the  attaching 
creditor,  and  therefore  is  not  wronged  by  having  his  credits 
applied  to  the  satisfaction  of  the  judgment.  If  he  afterwards 
seeks  to  make  the  garnishee  pay  again,  he  may  be  barred  as 
just  stated.  This  is  so  well  settled  that  more  upon  the  subject 
is  unnecessar3^- 

It  is  of  course  necessary  that  the  debt  sued  for  be  the  iden- 
tical one  that  was  adjudicated  in  the  garnishment  proceedings 

iKelloggv.  Freeman,  50  Miss.  157;  123;   Stockwell   v.   McCracken,    109 

Campbell  v.  Nesbitt,  7  Neb.  300.  Mass.  84;  American  Bank  v.  Rollins, 

2  Yazoo  R.  Co.  v.  Fulton  (Miss.),,  14  99  id.  313;  Whipple  v.  Robbins,  97 

So.  271;  Melton  v.  Kansas  City,  etc.,  id.    107;  Hull  v.   Blake,  13  id.   153; 

39  Mo.   App.   194;  Barber  v.  Howd,  Dole  v.  Boutwell,  1  id.  256;  Burnap 

85  Mich.  221 ;  Coburn  v.  Currens,  1  v.  Campbell,  6  Gray,  241 :  Haynes  v. 

Bush,  242;   Matthews  v.  Houghton,  Gates,  2    Head,  598;    Bolton  v.  Pa. 

11  Me.  377;  Sargeant  v.  Andrews,  3  Co.,  88  Pa.  St.  261;  Noble  v.  Oil  Co., 

id.    199;    McDaniels    v.    Hughes,    3  69    id.    409;    Coates    v.    Roberts,    4 

East,  367;"Stille  v.  Layton,  2  Harr.  Rawle,  100;  Lowry  v.  Bank,  2  W.  & 

(Del.)  149;  Farmers.  Simpson,  6  Tex.  S.  210:  Moore  v.  Spackman,  12  S.  & 

303 ;    Lieber  v.  Association,   36  Mo.  R.  287 ;  Canaday  v.  Detrick,  63  Ind. 

382;  Miner  f.  Rogers  Coal  Co.,  25  Mo.  485;  Louisville,  etc.  R.  Co.  v.  Lake 

App.  78;  Taylor  V.  Phelps,  1  Har.  &  (Ind.   App.),  32   N.   E.  590;  Debs  r. 

Gill,492;CoIeu.  Flitcraft,  47Md.312;  Dalton  (Ind.),  34  N.  E.  236;  Flower 

Mills  V.  Stewart,  12  Ala.  90 ;  Cook  r.  v.  Parker,  3  Mason,  247 ;  Wigwall  v. 

Field,  3  id.  53;  Chandler  v.  Faulk-  Union,  etc.  Co.,  37  la.  129;  Barton 

ner,  Sid.  56;  Leonard  v.  Bank,  116  v.  Smith,  7  id.  85;  Holmes  v.  Rem- 

Mass.  210;  Stimson  v.  Maiden,    109  son,  4  Johns.  Ch.   460;   Cochran  v. 

id.  313;  Webster  v.  Lowell,  2  Allen,  Fitch,  1  Sand.  Ch.  142. 


646  FINAL   JUDGMENT   AGAINST    GARITISHEE.  [§  955-. 

to  render  the  plea  sustainable.^  The  payment  into  court, 
pleaded  in  bar,  is  usually  made  to  the  sheriff^  by  the  gar- 
nishee; but  it  may  have  been  by  his  co-obligor.*  It  must  havo 
been  under  judicial  order  to  whom  or  by  whom  paid.  It  is 
not  ordinarily  under  execution  that  the  garnishee  pays.^  It 
is  immaterial  whether  the  garnishment  was  in  execution  or 
otherwise;  the  plea  of  payment  in  either  is  good  to  bar  the 
action. 

When  part  of  the  debt  due  the  attachment  defendant  has 
been  paid  under  order  in  garnishment  proceedings,  the  gar- 
nishee is  entitled  to  credit  for  the  amount  so  paid  against  a 
judgment  obtained  against  him  for  the  whole  debt  by  the 
attachment  defendant.^  Though  a  writ  of  execution  has  been 
issued,  the  court  will  recall  it  to  have  the  credit  entered.  This 
is  on  the  principle  that  the  garnishee  who  has  honestly  dis- 
closed to  a  competent  court,  and  has  obeyed  its  order,  should 
not  be  made  to  pay  twice.^  If  he  has  paid  to  the  sheriff  and 
that  officer  has  absconded  with  the  money,  the  loss  falls  upon 
the  plaintiff,  who  has  his  action  on  the  sheriff's  bond.^  If 
property  held  by  him  is  taken  and  sold  in  execution  by  the 
sheriff  at  the  instigation  of  the  plaintiff,  the  garnishee  is  no 
longer  responsible  to  the  plaintiff.^ 

YII.  "What  Judgment  is  a  Bar  to  Subsequent  Action. 

§  955.  Judgment  satisfied,  etc. —  Only  executed  garnishment 
judgments  can  be  interposed  against  suits  for  the  same  debt 
after  the  time  for  execution  has  passed.  When  the  garnishee 
has  not  satisfied,  and  is  no  longer  required  to  satisfy,  such 
judgment,  there  is  no  obstacle  to  the  subsequent  suit. 

It  has  been  held,  though  not  universally,  that  judgment 

1  Hutchinson  v.  Eddy,  29  Me.  91.  372;  Parker  v.  Wilson,  61  Vt.   116; 

2Rochereauu.  Guidry,  24  La.  Ann.  Turner  v.  Sioux  City,  etc.  R.  Co.,  19 

294.  Neb.  241. 

3  Nash  V.  Brophy,  13  Met.  476.  ^  Dawson,  In  re  (N.  Y.),  17  N.  E. 

*  Troyer  v.    Schweiser,    15    Minn.  608.     When  the  garnishee  has  paid 

241.     See  Cutler  v.   Baker,   2  Day,  to  the  sheriff,  there  should  be  no  or- 

498.  der  to  pay  over  to  the  plaintiff  while 

5  Sandburg  u.  Papineau,  81  111.  440.  claims  of  intervenors  are  pending. 
See  Collins  v.  Jennings,  42  la.  447.  ^  ciapp  v.  Rogers,  38  N.   H.  435 ;. 

6  Boyd  V.  Insurance  Co.,  Ill  N.  C.  Goddard  v.  Hapgood,  25  Vt.  351. 


§  956.]  WHAT   JUDGMENT   IS    A   BAR   TO    ACTIOX.  G4T 

against  the  garnishee  is  a  bar  to  a  subsequent  suit  by  the  at- 
tachment debtor,  whether  there  has  been  payment  or  delivery 
thereunder  or  not;  but  it  is  a  bar  only  at  a  stage  when  the 
garnishee  is  yet  liable  upon  the  judgment  though  he  has  not 
satisfied  it.  Obviously  if  the  principal  defendant  has  ap- 
pealed the  attachment  case  and  the  judgment  against  himself 
is  reversed,  that  against  the  garnishee,  though  not  appealed, 
would  cease  to  be  a  bar  to  a  subsequent  action.  The  trde 
rule  is  that  the  garnishee  may  plead  in  bar  what  he  has  paid 
or  is  bound  to  pay.^  He  cannot  thus  plead  in  bar  against  any 
sum  due  the  attachment  debtor  in  excess  of  what  he  has  paid 
or  is  obliged  to  pa\"  to  another  under  the  garnishment  judg- 
ment,^ Xor  can  he  so  plead  unless  the  debt  paid  or  to  be  paid 
to  another  is  identical  with  that  sued  upon  by  the  attachment 
debtor.^ 

§  956.  If  the  principal  defendant  is  in  court  it  is  his  busi- 
•ness  to  object  to  irregularities;  and  he  cannot  afterwards 
avail  himself  of  his  own  laches  when  suing  the  garnishee. 
But  under  the  plea  of  payment,  the  garnishee  must  show  legal 
payment;  the  judgment  he  pleads  must  have  been  one  that 
obliged  him  to  pay.  It  must  have  been  a  valid  judgment.^ 
The  judgment  may  be  impugned  for  fraudulent  collusion  be- 
tween the  attaching  creditor  and  the  oarnishee.*  It  cannot 
be  disregarded  because  it  w^as  rendered  by  a  foreign  tribunal.*^ 

It  is  no  payment  that  can  be  pleaded  in  bar  of  a  subsequent 
suit  when  the  garnishee  has  merely  credited  the  garnishor 
upon  his  books  and  debited  the  attachment  debtor  to  the 
same  amount  after  he  has  been  charged  in  a  garnishment 
])roceeding.'^     It  is  not  enough  to  bar  a  subsequent  suit  by  his 

1  See,  on  this  subject,  McAllister  v.  ^  Ohio,  etc.  R.  R.  Co.  v.  Alrey,  43 

Brooks,  33  Me.  80 ;  Sessions  v.  Stevens,  Ind.  180. 

1    Fla.   233;    Brown  v.   Somerville,  sgeward  t".  Heflin,  20  Vt.  144. 

8  Md.    444;  Cheongwo  v.   Jones,   3  6  Baltimore  &  Ohio  R.  R.  Co. 

Wash.  C.  C.  359.  May,  25  Ohio  St.  347 :  Morgan  v.  Ne- 

-  Tarns  V.  Bullitt,  35  Pa.  St.  308;  ville,  74  Pa.  St.  52;  Noble  v.  Thomp- 
Baxter  V.  Vincent,  6  Vt.  G14;  Barton  son  Oil  Co.,  69  id.  409;  Gunn  v. 
r.  Albright,  29  Ind.  489;  Cameron  u.  Howell,  35  Ala.  144;  Wigwall  v. 
Stollenwerk,  6  Ala.  704;  Robeson  v.  Union  C.  &  M.  Co.,  37  la.  129;  Bar- 
Carpenter,  7  Martin  (N.  S.   La.),  30.  row  v.  West,  23  Pick.  270;  Meriam 

3  Harmon  v.  Birchard,  8  Blackf.  v.  Rundlett,  13  id.  511. 

418;  Sangster  v.  Butt,  17  Ind.  354.  'Wetter    v.    Rucker,    1    Brod.    & 

Bing.  491. 


CiS  FINAL    JUDGMENT    AGAINST    GARNISHEE.       [§§  957,   958. 

immediate  creditor  for  the  garnishee  to  plead  the  order  charg- 
ing him,  or  even  to  plead  final  judgment  against  him  in  the 
garnishment  after  the  main  suit  has  been  completed  and  the 
judgment  against  the  attachment  debtor  executed ;  there  must 
also  be  a  plea  showing  that  the  garnishment  judgment  has 
been  executed  or  is  still  to  be  executed,  as  before  remarked ; 
and  therefore  both  judgments — that  against  the  garnishee 
and  that  against  the  principal  debtor  —  are  necessary  to  consti- 
tute a  bar.  For  the  former  is  merely  hypothetical,  however 
positively  it  may"  be  written;  it  is  dependent  upon  the  main 
decree  and  must  stand  or  fall  with  it. 

§957.  Irregularities  of  judgment,  etc. —  If  the  garnishee 
hae  disclosed  candidly,  obeyed  the  court,  paid  when  ordered, 
and  done  his  whole  duty,  he  will  be  protected  both  while  pro- 
ceedings are  pending  and  afterwards.^  He  is  not  to  be  held 
responsible  for  irregularities  which  he  could  not  prevent, 
though  the}^  be  such  as  to  cause  the  judgment  to  be  finallv- 
set  aside  after  he  has  paid  under  order.-  Defects  of  notice 
have  been  held  not  to  affect  the  judgment's  protection  of  him 
when  not  such  as  to  affect  the  jurisdiction.^ 

When  the  debtor  was  a  ward  and  the  garnishee  his  guard- 
ian, notice  on  the  latter  was  held  to  give  all  the  information 
to  the  former  which  the  law  required,  so  that  he  was  pre- 
sumed to  be  coofnizant  of  the  trustee  suit,  and  therefore  could 
not  deny  the  jurisdiction  as  void  for  want  of  notice  and  could 
not  sue  the  garnishee  subsequent  to  judgment.* 

§  958.  Payment  to  defendant  witlwut  knoirledge  of  notice. — 
Garnishees  not  personally  served,  though  notices  were  left  at 

1  Work  V.  Brown  (Neb.),  56  N.  AV.  98  Pa.  St.  440;  McDonald  v.  Simcox, 
1082;  Lomerson  v.  Hoffman,  4  Zab.  id.  619.  See  Clark  v.  Meixsell,  29 
674;  Houston  v.   "Walcott,  1  la.  86;     Md.  231. 

O'Connor  v.  O'Connor,  2  Grant,  245 ;        3  Stout  v.  Woods,  79  Ind.  108 ;  Reed 

Palmer  v.  Ballard,   3  Stewart,  826;  v.  Whitton,  78  id.  579;  McAlpine  v. 

Cowan  V.  Lowry,  7  Lea.  620;  Bray-  Sweetzer,  76  id.  78;  Hume  v.   Con- 

nard  v.  Burpee,  27  Vt.  616;  Pratt  v.  duitt,  id.  598;  Muncy  v.  Joest,  74  id. 

Cunliff,  9  Ala.  90.  409;    Mavity  v.    Eastbridge,    67  id. 

2  Wheeler  u  Aldrich,  13  Gray,  51 ;  211;Presler  v.  Turner,  57  id.  56: 
Morrison  v.  New  Bedford,  etc.,  7  id.  Smith  v.  Dixon,  58  la.  444.  See 
267;  Tubb  v.  Madding,  Minor,  129;  Kirby-Carpenter  Co.  v.  Twombley 
Gildersleeveu.  Caraway,  19  Ala.  246;  (Mich.),  59  N.  W.  809. 

Woods  V.  Milford  Savings  Inst.,  58        *  Woods  v.  Milford  Savings  Insti- 
N.  H.  184;  Cottle  v.  Am.  Screw  Co.,     tution,  58  N.  H.  184. 
13  R.  I.  627;  Howard  v.  McLaughlin, 


§  959.]  WHAT    JUDGMENT    IS    A    BAK    TO    ACTION.  G49 

their  domicile,  who  have  paid  their  own  creditors  without 
knowledge  of  the  garnishments,  have  been  held  not  charge- 
able in  those  proceedings.  Whether  payment  in  ignorance 
of  the  notice  be  made  by  the  defendant's  debtor  personally  or 
through  his  agents,  it  is  deemed  not  voluntary  in  the  sense  in 
which  the  word  is  above  employed.  There  being  no  design 
to  defeat  the  garnishor  by  collusion  with  the  attachment 
debtor,  the  garnishee  paying  the  latter  in  good  faith  without 
knowledge  of  the  summons  left  for  him  has  been  relieved 
from  the  garnishment.'  A  garnishee,  to  avail  himself  of  his 
ignorance  of  a  summons  legally  left  for  him,  ought  to  make 
out  a  clear  case.  It  is  not  a  rule  that  he  would  exonerate 
himself  under  the  circumstances  by  making  it  certain  that 
his  payment  to  the  defendant  was  honest.  The  rule  is  that 
payment  to  the  defendant  after  summons  does  not  relieve 
from  the  garnishment.'^ 

§  959.  Voluntary  payment  to  attaching  creditor. —  Yolun- 
tary  payment  to  the  attaching  creditor  will  not  screen  the 
garnishee  from  his  debt  to  his  own  creditor.^  And  it  may  be 
deemed  voluntary,  should  he  have  legal  ground  for  resisting 
the  execution,  yet  fail  to  use  it —  especially  if  the  principal 
debtor  is  absent.  So,  too,  when  he  pays  without  a  bond  from 
the  plaintiff  to  restore  to  the  defendant  u))on  his  appearance 
within  a  year  and  a  day,  when  the  law  retains  that  feature  of 
foreign  attachment.*  So,  too,  when  he  surrenders  pr(;|  erty 
,to  the  court  without  order,  when  not  served  till  after  the  re- 
turn day.-^  Paying  when  not  obliged  to  pay  is  voluntary,  and 
therefore  no  protection.^  Payment  into  court  before  execu- 
tion, under  an  order  authorized  by  statute,  is  not  voluntary.^ 

1  Thome  u  Mattliews.  5  Cush.  544;  v.  Crabtree,  71  Ala.  479;  Bulton  v. 
Williams  v.  Kenney,  98  Mass.  143;  Trader,  75  Mich.  295;  Hughes  v. 
Spooner  v.  Rowland,  4  Allen,  485;  Monty,  24  la.  499:  Toledo,  etc.  R. 
Jordan  v.  Jordan,  75  Me.  100.  Co.  v.  McNulty,  34  Ind.  531 ;  Bo^-den 

2  Donnell  v.  Portland,  etc.  Co.,  76  v.  Robinson  (Tex.  App. ).  23  S.  W.  816. 
Me.  33.  *  Myers  v.  Ulrich,  1  Bin.  25;  Mc- 

3  Sturtevant  v.  Robinson,  18  Pick.  Phail  v.  Hyatt,  29  la.  137. 

175;  Home  Mutual  Ins.  Co.  r.  Gam-  5  Idler    v.    Hasche,    67   Wis.    653; 

ble,  14  Mo.  407;  Moyer  v.  Lobengeir,  WMs.  Rev.  Stat.,  §  3716, 

4  Watts,  390;  Myers  v.  Urich,  1  Bin.  6  Yocum  v.  White,  36  la.  288.    See 

25;  Grissom  ik   Reynolds,    1    How.  Broadhurst  r.  Morgan  (N.  H.),  29  A. 

(Miss.)  43 ;  PuUiam  v.  Aler,  15  Gratt.  55?. 

54;  Johanna;.  Rufener,  33  Wis.  195;  '^  Irwin   v.  McKechnie  (Minn.),   59 

Johnson  v.  Carry,  2  Cal.  33;  Mason  N.  W.  987. 


650  FINAL    JUDGMENT    AGAINST    GARNISHEE.       [§§  960-962, 

§960.  Effect  of  order  of  discharge. —  xVs  the  discharge  of 
the  g-arnishee  does  not  operate  as  a  subrogation  of  the  attach- 
ing creditor  to  the  rights  of  the  defendant,  and  is  no  adjudi- 
cation of  his  obligation  to  the  latter,  it  cannot  be  pleaded 
either  in  bar  or  abatement  to  a  suit  brought  by  him.^  But  if 
the  answer  to  the  interrogatories  was  a  denial  of  indebted- 
ness in  the  presence  of  the  attachment  defendant,  who  acqui- 
esced, or  gave  his  assent  even  tacitly,  the  garnishee  may  avail 
himself  of  the  circumstance  when  afterwards  sued  for  the 
same  debt  by  such  defendant.^ 

§  961.  Airpeal  after  discliarge,  etc —  When  garnishment  has 
been  dissolved,  and  the  plaintiff  has  appealed,  and  the  defend- 
ant has  sued  the  garnishee  for  what  was  attached  in  the  lat- 
ter's  hands,  the  court  will  not  order  a  stay  of  proceedings  in 
such  suit,  to  await  the  result  of  the  appeal  in  the  attachment 
suit;  for  should  there  be  judgment,  the  garnishee's  payment 
thereon  would  protect  him  from  the  garnishment  though  the 
previous  decree  dissolving  it  should  afterwards  be  reversed.* 
A  garnishee,  however,  is  not  finally  discharged  by  fhe  dissolu- 
tion of  the  garnishment,  if  the  plaintiff  appeal,  but  must  await 
the  ultimate  result  of  the  litigation.*  Payment  to  the  defend- 
ant after  appeal  is  void  as  to  the  plaintiff.^ 

§  962.  The  garnishee,  on  appeal,  cannot  set  up  that  he  dis- 
closed prematurely  when  he  had  opportunit}''  to  do  so  on  the 
trial  below  and  did  not.®  His  disclosure  before  a  justice  of 
the  peace  cannot  be  contradicted  by  oral  testimony  on  appeal 
as  to  the  question  of  w4iat  was  disclosed.''  B}^  the  statute  of 
Minnesota   the   order   disposing  of   the   garnishment  is  ap- 

iRuff  ?;.  Ruflf,  85  Pa.  St.  31)3;  Puf-  in  case   there  should  be  judgment 

fer  V.  Graves,  6  Fos.  258.  against  the  defendant.     There  was 

2  Drennon  v.  Ross,  2  Colo.  App.  judgment  for  the  defendant,  from 
181.  which    the    plaintiff    appealed.     It 

3  Montgomery  Gas  Light  Co.  v.  was  held  that  the  garnishee  was  not 
Merrick,  61  Ala.  534 :  Duncan  v.  discharged,  but  that  he  could  not  be 
Ware,  5  Stew.  &  Porter,  119.  made  to  pay  till  the  conversion  of 

*  Kennedy  v.  Tiernay,  14  R.  I.  528.  the  assets.    Delby  v.  Tingley,  9  Neb. 

Having  admitted  the  possession  of  412. 

notes  belonging  to  the  defendant  to  spuff  ^..  Hutcher,  78  Ky.  146. 

the  amount  of  |2,000,  the  garnishee  ^  Burlington,  etc.  R.  Co.  v.  Lum- 

was  ordered  to  retain   $475  of  his  ber  Co.,  18  Neb.  303. 

future  collections  thereon  to  meet  the  ^  jgabelle    v.    Iron    Cliffs   Co.,    57 

attaching  creditor's  claim  and  costs,  Mich.  120. 


§§  963,  904.]     SUITS  Br  garnishoks  and  others.  651 

pealable,  whether  the  garnishee  be  charged^  or  discharged.^ 
But  the  garnishee  himself  cannot  appeal  from  a  judgment 
charging  him,  made  on  his  own  acknowledgment  of  indebted- 
ness to  the  defendant.'  "When,  upon  his  denial,  he  was  charged, 
the  issue  upon  appeal  was  whether  he  had  answered  truly.^ 

§  963.  Collateral  attaclv  of  juihjment  ayainnt  (jarnisliee. — 
The  order  of  court  that  the  garnishee  pa}^  into  court  the  sum 
attached  in  his  hands,  or  that  he  surrender  the  defendant's 
propert}'-  which  he  holds,  cannot  be  collaterally  attacked,'^ 
even  though  the  court  may  have  been  only  a  dc  facto  tribunal." 
But  if  the  order  is  void  for  want  of  jurisdiction,  the  garnishee 
is  not  protected  by  the  judgment  and  payment  thereunder  to 
the  attaching  creditor;  he  may  be  made  to  pay  his  debt  to  his 
own  creditor  (the  attachment  defendant)  notwithstanding 
his  prior  payment  to  the  wrong  party  under  such  jurisdiction- 
less  judgment.^ 

YIII.  Subsequent  Suits  by  Garnishors  and  Others  Against 
THE  Garnishee. 

§  964.  Siihsequent  suit  l)y  the  garnislior. —  It  has  been  held 
that  the  discharge  of  the  garnishee  may  be  pleaded  in  bar  to 
an  action  by  the  garnishor  for  injury  sustained  b}'^  reason  of  a 
false  and  fraudulent  answer  resulting  in  the  discharge.^  There 
are  reasons,  however,  against  such  holding.  The  limited  scope 
of  the  examination  under  the  statutes  of  many  states;  the 
rule  under  others  that  the  trustee  must  be  discharged  when 
he  does  not  affirmatively  show  liability,  without  having  his 

1  Albachten    v.    Chicago,    etc,    R.  7  Louisville,    etc.   R.  Co.   v.   Lake 

Co.,  40  Minn.  378;  Richter  v.  Trask,  (Ind.),  33  N.  E.  590;  Debs  v.  Daltoii 

id.  379.  (Ind.),  34  N.  E.  230;  Emery  v.  Royal, 

^McConnellu.  Rakn«ss,  41  Minn,  3.  117  Ind.  299;  Newman  v.  Manning, 

3  German  Bank  v.  Peuser,  40  La.  89  id.  422:  Matheny  v.  Earl,  75  id. 

Ann.  796.  531;  Andrews  v.  Powell,  27  id.  303; 

*  Buckey  v.  Phenice  (Colo,),  35  P,  Laidlaw  v.  Morrow,  44  Mich,   547 ; 

277.  Holland  v.   Smit,    11    Mo.    App,    6; 

»  Taylor  v.  Benjamin,  76  Ga,  763;  Branahl  u.  Watson,  id.  587;  Rudolph 

Wilson  V.  Burney,  8  Neb.  39;  Gray  v.  McDonald,  6  Neb.  163. 

V.  Del.  &  Hud.  Canal  Co.,  5  Abb.  N,  8  Lyford   v.  Demerritt,  32   N,    H. 

Cas,  131,  234. 

6  Oppenheim  v.  Pittsburgh,  etc,  R, 
Co.,  85  Ind,  472. 


652  FINAL   JUDGMENT    AGAINST    GARNISHEE.  [§  965. 

disclosure  tested  b}'  traverse;  the  practice  under  the  statutes 
precluding  the  investigation  of  complicated  accounts  and 
unliquidated  obligations,  suggest  many  circumstances  under 
which  a  dishonest  garnishee  may  wrong  the  garnishor  by  his 
answers,  with  perfect  impunity  so  far  as  the  attachment  pro- 
ceedings are  concerned.  For  every  wrong  there  should  be  a 
remedy:  and  the  attaching  creditor  ought  to  have  his  subse- 
quent action  against  the  garnishee  when  he  has  no  other 
means  of  redress.^  He  cannot  regarnish  him  in  the  case  in 
which  there  has  been  discharge,  unless  the  judgment  be  re- 
opened.^ If  the  garnishee  has  been  ordered  to  pay,  3^et  fails 
to  do  so,  and  the  garnislior  takes  proceedings  against  him  in 
execution  of  the  judgment,  it  is  held  that  he  cannot  garnish 
the  debtors  of  the  garnishee.^ 

§  965.  Suits  hy  tliird  i)crsons. —  The  garnishee  cannot  plead 
judgment  and  payment  in  bar  to  a  suit  brought  by  one  who 
w^as  not  a  party  or  privy  to  the  attachment.*  The  reason  is 
the  same  as  that  applicable  to  any  personal  judgment  —  the 
garnishment  being  alvva3's  personal  in  its  relation  to  the  gar- 
nishee. The  fact  that  it  is  otherwise  in  other  relations  can- 
not affect  the  plea  in  bar  to  the  suit  brought  by  one  not  a 
party  to  the  former  proceedings.  Failure  to  claim  does  not 
estop  one  from  action  thereafter,  if  he  has  done  nothing  to 
deceive  the  garnishee,^  and  has  sued  within  legal  time.® 

Discharge  in  one  proceeding  is  no  bar  to  another  by  a  dif- 
ferent creditor,  though  the  property  or  credit  of  the  same 
defendant  be  the  subject  of  the  inquiry.'^  But  the  rule  is 
otherwise  when  there  has  been  final  judgment  and  payment; 
manifestly  a  second  attaching  creditor  could  not  then  subject 
the  garnishee  to  a  repayment  of  the  same  debt.^  And  this 
is  true,  though  the  first  attachment  and  garnishment  mav 

iLau  V.  Dry  Goods  Co.  (Neb.),  56  Me.  435;  Miller  v.  McLain,  10  Yerg. 

N.  W.  954.  245. 

2  Marsh  v.  Phillips,  77  Ga.  436.  5  Rutherford  v.  Fulton,  89  Ga.  353. 

3111.   Cent.   R.   Co.  v.  Weaver,  54  See  Pecard  v.  Home,  91  Mich.  346; 

111.  a  19.  Acts  of  Mich.  (1885),  No.   175,  rela- 

4  Cooper  V.  McClun,   16    111.    435;  tive  to  estoppel. 
Lawrence  v.  Lane,  9  id.  354;  Wilson        ^  Becker  v.  Hulme  (Kan.),  36  P.  986. 
V.  Murphy,  45  Mo.  409 ;  Dobbins  v.        "'  Breading  v.  Seigworth,  29  Pa.  St. 

Hyde,    37   id.    114;    Funldiouser    v.  396 ;  Spruill  t'.  Trader,  5  Jones,  39. 
How.,  24  id.  44;  Wise  v.  Hilton,  4        8  Watkins  v.  Cason,  46  Ga.  444. 


§  9GG.]  SUITS    BY   GARNISIIOKS    AXD    OTHERS.  C53 

have  been  irret^ular.^  Exception  to  the  rule  has  been  recog- 
nized. The  maker  of  a  promissory  note,  after  having  paid  it 
to  the  creditor  of  the  payee  under  an  order  charging  him  as 
garnishee  of  that  creditor,  was  not  able  to  bar  a  subsequent 
suit  against  him  on  the  note.  There  had  been  a  transfer  to 
the  first  indorsee,  which  the  garnishor  had  attacked  for  fraud. 
The  second  indorsee  instituted  the  subsequent  suit;  and  it  was 
held  that  it  could  be  maintained;  that  though  the  plaintiff 
had  had  notice  of  the  garnishment  proceeding,  yet  his  rights 
were  not  thereby  affected  as  he  was  not  a  party  to  the  pro- 
ceeding.- 

§  966.  Suit  hij  assignee. —  Judgment  and  payment  consti- 
tute no  bar  to  a  subsequent  suit  by  an  assignee  against  the 
garnishee  if  the  latter  knew  of  the  assignment  and  failed  to 
disclose  it  to  the  court,  and  thereafter  continued  to  withhold 
the  fact  till  final  judgment  and  payment  followed  the  charg- 
ing order.^  To  cut  the  garnishee  off  from  the  benefit  of  the 
plea,  there  must  have  been  laches  on  his  part  sufficient  to 
amount  to  an  estoppel.  Withholding  the  fact  in  fraud,  and 
in  collusion  with  the  attaching  creditor  or  the  defendant, 
would  and  should  always  deprive  him  of  the  benefit  of  the 
plea;  but  it  is  held  that  failure  to  disclose  is  fatal  to  him, 
though  there  may  have  been  no  fraud  or  collusion.^  If,  how- 
ever, the  assignee  himself  has  misled  the  garnishee  into  such 
entanglement,  the  latter  is  entitled  to  relief  from  the  injustice 
of  subjection  to  second  payment.^ 

If  there  is  no  fault  on  the  part  of  the  garnishee;  if  he  has 

1  Howard  v.  McLaughlin,  98  Pa.  nishee,  to  wlioin  the  defendant  had 
St.  440.  See  McDonald  v.  Simcox,  conveyed  more  property  than  enough 
id.  619.  to  pay  the  plaintiff,  was  held  liable 

2  Holland  v.   Smit,  11  Mo.  App.  6.  to    a    personal    judgment    for    the 

3  Casey  v.  Davis,  100  Mass.  124;  amount  of  the  debt.  Sutton  v. 
Greentree  v.  Rosenstock,  61  N.  Y.  Hasey,  58  Wis.  556. 

583;  Prescott  v.  Hull,  17  Johns.  284;        &  Wentworth  v.  Weymouth,  11  Me. 

Smooth.  Eslava,  23  Ala.   659;  Sew-  446;  McAllister  u  Brooks,  32  id.  80; 

ard  V.  Heflin,  20  Vt.  144;  Marsh  v.  Wood  v.   Partridge,    11   Mass.   488; 

Davis,  24  id.  363,  Davv-son  v.  Jones,  Perkins  v.   Parker,  1   id.  117;  Com- 

2  Houston  (Del.),  412.  stock  v.   Farnham,  3  id.  96;  Foster 

•1  Field  v.  McKinney,  60  Miss.  763;  v.  Sinkler,  4  id.  450;  Dix  v.  Cobb, 

Smith  V.    Blatchford,    3    Ind.    184;  id.  508;  Jones  v.  Witter,  13  id.  304; 

Kimbrough   v.    Davis,  34  Ala.  583;  Warren  v.   Copelin,  4   Met.  (Mass.) 

Foster  v.  White,  9  Port.  221.     A  gar-  594. 


654 


FINAL   DECREE    AGAINST    GARNISHEE. 


[§  ^(it 


made  disclosure  of  the  assignment  at  any  time  before  he  was 
required  to  pay  into  court,  no  action  will  lie  against  him  by 
the  assignee.  The  order  charging  him  may  have  been  errone- 
ous, but  he  is  not  to  suffer  for  the  court's  fault.^ 

"When  the  maker  of  a  note  is  garnished,  and  final  judgment 
is  rendered  against  him  before  he  has  had  notice  of  the  assign- 
ment of  the  note,  he  may  plead  the  judgment  in  defense  to  a 
suit  by  the  assignee.^ 

§967.  Laches. —  Failure  by  the  garnishee  to  disclose  the 
fact  that  the  goods  in  his  hands  are  subject  to  a  chattel  mort- 
gage, resulting  in  judgment  against  him  in  an  attachment 
proceeding,  will  leave  him  liable  to  a  suit  by  the  mortgagee.' 
The  answer  should  disclose  the  fact  of  the  existence  of  the 
mortgage,  when  within  his  knowledge,  so  as  to  entitle  him  to 
a  discharge  from  the  garnishment.  He  must  take  the  conse- 
quences of  his  own  laches.* 


1  Cottle  V.  American  Screw  Co.,  13 
R.  I.  627;  Canaday  v.  Detrick,  63 
Ind.  485. 

2  Covert  V.  Nelson,  8  Blackf .  265 ; 
Cornwell  v.  Hungate,  1  Ind.  156; 
Rooker  v.  Daniels,  5  id.  519;  Shetler 
V.  Thomas,  16  id.  223;  Skoppenhast 
V.  BoUman,  21  id.  280;  Richardson 
V.  Hickman,  22  id.  244;  King  v. 
Vance,  46  id.  246.  In  the  last  case 
it  was  held  that  the  maker  may  be 


garnished  before  the  note  is  due  and 
that  the  judgment  is  payable  when 
the  note  becomes  due,  overruling 
the  case  of  the  Junction  R.  R.  Co.  v. 
Cleneay,  13  Ind.  161. 

3  Smith  V.  Ainscow,  11  Neb.  476. 
See  Flanagan  v.  Cutler,  121  Mass.  96. 

4  Fletcher  v.  Ware,  81  Mo.  524; 
Fretwell  v.  Laffoon,  77  id.  26 ;  Mel- 
ton V.  Lewis,  74  Tex.  411;  Segog  v. 
Engle,  43  Minn.  191. 


CHAPTER  XXI  \^ 

SUITS  AGAINST  THE  ATTACHING  OFFICER.l 

I.  In  General §§  968-976 

II.  Suit  on  the  Sheriff's  Bond 977-981 

III.  Replevin  Suit  Against  the  Officer 982-992 

I.  In  General. 

§968.  Trespass. —  Action  lies  against  the  officer  who  at- 
taches the  debtor's  property  without  lawful  authority  to  do 
so.^  Such  suit  is  usually  for  trespass;  and  trover  lies  against 
him  for  attaching  property  held  by  an  assignee.'  He  may  be 
sued  on  his  bond;  and  that  is  held  the  rightful  form  in  Mis- 
souri.'* If  the  wrong  complained  of  is  charged  to  have  been 
done  under  color  of  official  function  —  under  a  writ,  however 
invalid  —  both  the  officer  and  the  sureties  on  his  official  bond 
may  be  sued  together.^ 

§  969.  For  injury  to  property. —  The  sheriff  is  liable  to  suit 
for  injury  done  through  his  fault  to  the  attachment  defend- 
ant's property  while  it  is  in  his  official  custody,  though  it  may 
have  been  lawfully  detained.  That  defendant  is  the  injured 
party  when  such  wrong  is  done,  whether  he  gain  the  attach- 
ment suit  or  not.  He  is  entitled  to  have  his  attached  property 
well  preserved  and  cared  for,  so  that  it  will  sell  for  its  full 
value  and  pay  as  much  of  his  debt  as  possible,  should  judg- 
ment go  against  him;  and  he  is  entitled  to  have  it  returned 

1  The    liability  of  the    sheriff  or        *  Paddock,  etc.  Co.  v.   Mason,   16 

other  officer  for  wrongfully  attach-  Mo.  App.  320. 

iiig  has  been  presented  in  part  when        SLammon  v.  Feusier,  111  U.  S.  17; 

other    topics    have     been     treated.  State  v.  Jennings,  4  Ohio  St.  418, 

Ante,  §g  290-31 1.  423;  United   States  v.  Hine,  3  Mac- 

^Bentley   v.   White,    54   Vt.    564;  Arthur,  27;  Becker   v.   Dunham,  27 

Marqueze  v.   Southeimer,   59  Miss.  Minn.   32;  Carpenter  v.   Dresser,  73 

430;  Patton  v.  Garrett,  37  Ark.  605 ;  Me.  377.     See  authorities  ante,  §  310, 

Swan  V.  McCracken,  7  Lea,  626.  and  j)'>'0  and  con,  post,  §g  978,  979. 

3  Clark  V.  Dean,  143  Mass.  292. 


656  SUITS    AGAIXST    ATTACHI^'G    OFFICER.       [§§  970,   971. 

in  as  good  condition  as  it  was  in  when  seized,  in  case  the  re" 
suit  of  the  attachment  suit  should  be  favorable  to  him.  If 
the  attaching-  creditor  should  withdraw  his  suit  or  abandon 
the  attachment,  the  right  of  the  alleged  debtor  to  be  reim- 
bursed  by  the  sheriff  for  loss  caused  b\^  fault  of  that  officer  in 
seizing  and  keeping  the  property  under  the  writ  would  be 
equally  clear.^ 

The  officer  may  sue  upon  the  indemnity  bond  given  to  se- 
cure him  in  attaching,  if  he  has  been  mulct  in  damages  for 
executing  the  writ  upon  property  pointed  out  by  the  attach- 
ing creditor.  He  ma}''  call  the  creditor  as  warrantor  into  the 
suit  for  damag'es  for  executing  the  writ  under  such  circum- 
stances.     This  topic  has  already  come  under  notice.^ 

§  970.  For  not  executing  ivrit. —  Action  lies  against  the  offi- 
cer for  not  attaching  when  it  is  his  duty  to  attach.^  He  is 
responsible  to  the  injured  party  for  partiality  in  the  service 
of  writs.*  He  is  liable  for  taking  too  little  when  he  ma\'^  se- 
cure enough  to  cover  the  debt  sued  upon.'^  He  is  liable  for 
unnecessary  delay  when  the  attacliing  creditor  is  thereby  in- 
jured.^ He  is  responsible  if  his  return  is  so  defective  in  the 
description  of  the  property  attached  as  to  render  the  attach- 
ment nugatory."^  The  same  is  true  for  injury  caused  by  any 
wrong  done  by  the  return.^ 

§  971.  For  not  Iceejiing. —  The  sheriff  may  be  sued  by  the  at- 
taching creditor  for  not  exercisiiig  due  diligence  in  the  keeping 
of  attached  property  if  he  thus  causes  injury  to  the  latter." 
Should  he  deliver  the  property  to  a  junior  attacher  he  would 
become  liable  to  the  senior. ^"^ 

The  measure  of  damages  is  the  value  of  the  attached  prop- 
erty, if  that  is  less  than  the  attaching  creditors  judgment;  or, 

1  Brown  v.  Carroll,  16   R.  I.  604;  6  Whitney   v.  Butterfield,  13  Cal. 

Becker  v.  Bailies,  44  Ct.  167.  335. 

^  Ante,  ^%  231-2^5.  7Pond  v.  Baker,  55  Vt.  403,  and 

3  Ranlett  v.  Blodgett,  17  N.  H.  304 ;  other  cases  cited  ante,  §  320. 

Ball  V.  Badger,  6  id.  405;  Marshall  SHajmes  v.  Small,  22  Me.  14;  Saw- 

V.  Hosmer,  4  Mass.  63.  yer  v.  Curtis,  2  Ashmead,  127. 

*  State  V.  Harrington,  28  Mo.  App;  ^  Becker  v.  Bailies,  44  Ct."167,  and 

292;  Metzner  v.  Graham,  57  Mo.  411 ;  other  cases  cited  ante,  §  555. 

Howard  v.  Clark,  43  id.  349.  i"  Cordman  v.  Malone,  63  Ala.  570, 

5  Ransom  v.  Halcott,  18  Barb.  56;  Scarborough  v,  Malone,  67  id.  570. 
Howes  V.  Spicer,  23  Vt.  508. 


§  972.]  IN    GENERAL.  657 

the  amount  of  the  judgment  if  the  property  was  worth  as  much 
or  more.^  When  the  officer  is  sued  for  damages  for  releasing 
attached  property,  he  cannot  defend  by  impeaching  the  judg- 
ment of  the  attaching  creditor;  but  he  may  charge  fraud.^ 

If  he  attached  in  good  faith  but  afterwards  let  the  property 
go,  he  may  defend  against  a  suit  for  damages  brought  by  the 
attaching  creditor  by  averring  and  proving  that  the  propert}'' 
did  not  belong  to  the  defendant,'  He  cannot  relieve  himself 
by  showing  that  the  attachment  was  wrong,  after  it  has  been 
sustained  by  a  judgment  for  the  plaintiff;^  or  by  showing  that 
his  deputy  was  at  fault,  or  that  the  act  of  his  deputy  was  done 
after  he  had  ceased  to  be  connected  with  the  office.'^  Voidable 
errors  of  an  attachment  proceeding  are  not  available  by  third 
parties  in  a  collateral  case.^ 

An  officer,  when  misled  by  the  plaintiff,  is  not  liable  to  him 
for  the  difference  between  the  amount  of  the  judgment  and 
the  amount  collected  on  execution.'^ 

In  a  suit  against  the  sheriff  for  wrongful  attachraent,  if 
there  was  no  fraud,  and  the  attached  property  has  been  re- 
stored, exemplarj'^  damages  should  not  be  awarded,  nor  should 
he  be  charged  with  the  attorney's  fees  and  expenses  of  the 
attachment  defendant.^ 

§  972,  When  a  second  attachment  has  been  laid  in  the 
sheriff's  hands,  he  cannot  deliver  the  attached  property  to  the 
defendant  by  direction  of  the  first  attacher  without  rendering 
himself  liable  in  damages  to  the  second  attacher.  The  dis- 
missal of  the  attachment  and  of  the  suit  itself  by  the  first  at- 

iBernheim  v.  Shannon  (Tex.),  21  16  Pick.  556.     The  o?n<s  is  on  him  to 

S,  W.  386;  Dewitt  v.  Oppenheimer,  show  lawful   proceeding  when  the 

51  Tex.  103;  Walton  v.  Compton,  2§  property  seized  has  been  shown  to 

id.  569;  Smith  v.  Tooke,  20  id.  750;  belong  to  a  third  person.    Oberfelder 

Hurlock  V.    Reinhardt,   11   id.    580;  r.  Kavanaugh,  21  Neb.  483;  Williams 

Vaughn  v.  Fisher,  32  Mo.  App.  29 ;  2  v.  Eikenberrj',  25  id.  721 ;  Paxton  v, 

Sedg.  on  Dam.,  §§  545-6.  Moravek  (Neb.),  47  N.  AV.  919. 

2  West  V.  Meserve,  17  N.  H.  432.  ^  vVest  v.  Meserve,  17  N.  H.  432. 

3  Chapman  v.  Smith,  16  How.  (U.  5  Morse  v.  Betton,  2  N.  H.  184, 

S,)  114;  Mason  V.  Watts,  7  Ala.  703;  6\vinchell  v.  McKenzie,  35  Neb. 

Dewey  v.  Field,  4  Met.  381 ;  Magne  v.  813. 

Seymour,    5  Wend.    309 ;    Cilley  v.  '  Page  v.  Belt,  17  Mo.  263. 

Jenness,  2N.  H.  87 ;  Fuller  r.  Holden,  8  Adams  v.  Gillam  (Kan.),  3G  P.  51. 
4  Mass.  498;  Canada  v.  Southwick, 
42 


658  SUITS    AGAINST    ATTACHING   OFFICER.        [§§  973-975. 

taching  creditor  can  have  no  effect  upon  the  rights  of  the 
second  creditor,  acquired  before  the  release.^ 

The  attaching  officer  is  bound  to  replevy  attached  property 
taken  from  his  custody,  and  action  lies  against  him  for  failure 
to  do  so.^  In  New  York  the  sheriff  must  sue  the  garnishee 
for  the  sura  attached  in  the  hands  of  the  latter,  when  it  has 
not  been  paid  over,  without  awaiting  the  determination  of  the 
action  or  for  an  order  of  court.^ 

§973.  For  paying  to  lilaintiff  irWwut  autliority. —  The 
sheriff  would  be  accountable  should  he  pay  over  to  the  at- 
taching creditor  funds  deposited  under  order  of  court  by  the 
garnishee  in  case  the  principal  suit  should  be  decided  in  favor 
of  the  defendant  on  appeal  operating  as  a  supersedeas.  He 
Avould  be  accountable  either  to  the  garnishee  or  to  the  defend- 
ant—  to  whichever  might  be  rightfully  entitled  to  the  posses- 
sion of  the  fund  in  any  case.  And  for  an}^  action  of  the  sheriff 
b}^  which  the  garnishee  should  be  wronged,  it  is  obvious  that 
an  action  would  lie.  It  would  be  rather  tedious  than  profit- 
able to  suggest  the  various  circumstances  under  which  such 
suits  may  arise, 

§974.  For  disjyossessing  mortgagee. —  If  mortgaged  chat- 
tels are  attached  and  taken  from  the  possession  of  the  mort- 
gagee by  a  sheriff  in  executing  a  writ  of  attachment,  the  act 
is  unlawful,  since  there  is  thus  a  disturbance  of  rightful  pos- 
session; but  the  mortgagee  can  recover  from  the  sheriff  only 
what  is  due  him  on  the  mortgage.*  The  right  of  the  mort- 
gagor to  redeem  the  chattels,  in  such  case,  might  be  made  the 
subject  of  seizure,  as  that  of  an  incorporeal  thing,^ 

§975.  For  various  injuries. —  Whoever  is  injured  through 
fault  of  the  attaching  officer  may  recover  for  the  injury:  it 
may  be  sufficient  here  to  note  but  a  few  circumstances  in 
which  actions  lie  for  such  cause.  It  has  been  held  that  if  the 
sheriff,  in  executing  mesne  process  against  one  partner  for  his 

1  State  fOJreZ.u.  Baldwin,  10  Biasell,  2  Wood  v.  Bodine,  30  N.  Y.  Sup. 

165.       In  this  case   the  second  at-  Court,  354. 

tacher  proceeded  to  get  judgment  3  Davidson  v.  Chatham  Nat.  Bank, 

against  the  defendant  in  attachment,  39  N.  Y.  Sup.  Court,  138;  Code  Civil 

and  an  order  for  the  sale  of  the  at-  Prac,  §§  655,   675.     See  Nichols  v. 

tached  property,  after  the  first  at-  Hill  (S.  C),  19  S.  t.  1017;  S.  C.  Code, 

tacher  had  "dismissed  his  action  and  §  254. 

attachment."  *  Becker  v.  Dunham,  29  Minn.  33. 

sid. 


§  970.]  IN    GENERAL.  659 

personal  debt,  should  attach  and  remove  partnership  goods 
and  exclude  the  firm  from  possession,  he  would  be  liable  to 
an  action  of  trespass  by  the  partnership.^  Should  he  attach 
property  which  does  not  belong  to  the  defendant,  the  owner 
may  recover  it  with  damages.-  Should  any  lawful  possessor, 
though  not  the  owner,  be  disturbed  in  his  custody  by  an  offi- 
cer making  an  attachment  of  it  as  the  property  of  another 
person,  such  possessor  may  sue  the  officer  for  trespass.' 

§  976.  If  an  owner,  not  an  original  party  to  the  attachment 
proceedings,  should  intervene  and  claim  the  property  attached 
therein,  and  should  fail  to  sustain  his  claim,  he  could  not 
afterwards  maintain  replevin  against  the  officer  for  the  same 
property.'*  But  it  is  held  that  the  giving  of  an  indemnity 
bond  does  not  deprive  an  intervening  claimant  of  his  right  of 
action  on  the  sheriff's  bond.^ 

A  purchaser,  suing  the  officer  for  damages  for  an  alleged 
fraudulent  attachment  sale,  cannot  support  his  position  by 
proving  conversation  of  the  seller,  tending  to  show  fraud, 
when  the  talk  was  after  the  sale.^  But  if  the  talk  so  tending 
was  done  on  the  day  of  sale,  it  may  be  admitted  in  evidence  as 
a  part  of  the  res  gestce? 

The  purchaser  of  land  cannot  maintain  an  action  against  the 
sheriff  to  remove  a  pending  attachment  of  the  property  as  that 
of  the  vendor,  on  the  ground  that  it  is  a  cloud  upon  the  title; 
for  such  attachment  cannot  affect  the  rights  of  the  purchaser.'^ 

The  attaching  creditor  is  a  proper  party  to  a  bill  for  the 
specific  performance  of  a  contract  respecting  land  held  under 
his  attachment.  He  is  said  to  be  in  the  place  of  the  vendor 
(when  performance  with  reference  to  sale  is  concerned),  and 
is  bound  in  duty  to  the  extent  of  his  interest,  it  is  held.^ 

1  Sanborn  v.  Eoyce,  133  Mass.  594.  the  obligee  of  the  bond  can  reco%'er 

2  Connor  v.  Long,  104  U.  S.  329;  only  the  worth  of  the  property  in 
O'Leary  v.  Bradford,  39  111.  App.  excess  of  the  lien.  Hayman  v.  Hai- 
183;  ante,  %%  304,  820,  831.  lam,  79  Ky.  389;  Dehler  v.  Held,  50 

3  Williams  v.  Morgan,  50  Wis.  548,  id.  491, 

and  other  cases  cited  anie,  §§  255,  ^  Winchester,   etc.  v.   Creary,  116 

307;  Smith  v.   Kaufman   (Ala.),   10  U.  S.  161. 

So.  339.  "Jones  v.  Simpson,  116  U.  S.  609. 

4  Bray  v.  Saaman.  13  Neb.  519.  t- Wilson  v.  Kelly,  38  N.  Y.  Sup. 

5  Lewis  V.   Mansfield,  78  Ky.  460.  Court,  75. 

If  bonded  property  be  taken  from  ^Horton  r.  Hubbard,  83  Mich.  133; 
the  obligor   by  a  prior  lien-holdei-,     Chapman  v.    Morgan,    55    id,    136; 


660  SUITS    AGAINST    ATTACHING    OFFICER.        [§§  977,  978. 

II.  Suit  on  the  Sheriff's  Bond. 

§  977.  Breach  of  conditions. —  The  attaching  officer  may  be 
sued  upon  his  bond  for  taking  the  property  of  an  owner  who 
is  not  the  defendant  in  the  attachment  suit.  The  bond  is 
given  for  the  faithful  performance  of  his  official  duties,  and 
any  one  injured  by  a  breach  of  the  bond  may  sue  upon  it  and 
recover  the  damages  sustained.  The  bond  required  of  marshals 
of  the  United  States  is  for  the  faithful  performance  of  official 
duties  by  themselves  and  their  deputies;  and  it  is  provided 
by  statute  that  any  person  injured  by  a  breach  of  the  condi- 
tions of  the  bond  may  sue  upon  it  in  his  own  name  and  for 
his  own  use.^ 

The  state  statutes  are  usually  similar;  and  wherever  they 
are  so,  the  same  right  of  action  exists  against  the  sheriff  as 
against  the  marshal  in  the  federal  courts. 

■§  978.  Wrongful  seizure,  when  an  official  act. —  The  bond 
being  official,  and  the  wrongful  seizure  of  a  third  person's 
property  an  official  act  (though  not  authorized  by  the  attach- 
ment writ  and  therefore  not  a  valid  seizure  but  a  mere  act  of 
trespass),  the  officers  sureties  are  also  liable  upon  the  bond. 
Whether  the  attachment  be  rightful  or  wrono-f ul  it  is  an  official 
act,  and  the  obligation  of  the  sureties  is  that  their  principal 
shall  faithfully  perform  his  duties  and  that  they  will  be  re- 
sponsible for  any  breach  of  duty  on  his  part  to  those  whom 
the  wrong-doing  may  concern.  It  is  definite!}''  decided  that 
the  attachment  of  property  by  the  marshal  under  the  writ  is 
an  official  act  whether  the  thing  seized  belongs  to  the  defend- 
ant or  to  another  —  (that  is,  whether  the  officer  is  under  the 
protection  of  the  writ  or  not —  whether  he  has  attached  what 
he  was  ordered  to  take  or  something  else — )  and  therefore,  if 
wrongful,  it  is  a  breach  of  the  conditions  of  the  bond  for  which 
both  himself  and  his  sureties  are  liable  in  damaires  to  the  in- 
jured owner  of  the  property  wrongfully  attached.^ 

Rogers  v.  Odell,  36  id.  411;  Wood-  i  U.  S.  R.  S.,  §§  783,  784. 

ward  V.  Clark,   15  id.   104;  Morris  v.  2  Lanimon  v.  Feusier,  111  U.  0.  17; 

Hoyt,  11  id.  17;  Daily  u  Litchfield,  United  States  v.  Hine,  3  MacArthur, 

10  id.  36.     See  Stevenson  v.  Jackson,  27. 

40  id.  702;  Hanchett  v.  McQueen,  32 

id.  25. 


§§  979,  980.]  SUIT  02f  sheriff's  boxd.  GGl 

§  979.  It  has  also  been  held  that  a  seizure  by  a  sheriff,  under 
such  circumstances,  is  official  misconduct,  a  breach  of  the  con- 
ditions of  the  bond,  and  that  an  action  in  damag-es  lies  against 
both  him  and  his  sureties;  and  the  reason  gi\ren  is  that  such 
abuse  of  the  writ  is  done  colore  officii,  and  is  not  merely  an 
individual  act  of  trespass.'  The  case  is  not  as  though  the 
officer  should  attach  without  any  writ  at  all:  with  the  writ 
he  acts  officialh^,  though  it  be  no  warrant  for  taking  what  is 
exempt  or  what  belongs  to  an  owner  not  a  part}^;  without  it 
wrongful  taking  would  not  be  officially  done  and  the  sureties 
would  be  irresponsible.- 

The  rule  that  sureties  of  sheriffs,  constables,  etc.,  are  liable 
on  the  bond  for  the  tortious  taking  under  a  writ  of  property 
not  authorized  by  the  writ  to  be  taken  has  been  frequently 
recognized  by  the  state  courts,  though  they  have  not  been 
unanimous  on  the  subject.' 

§  980.  LiaMIity  to  lien-liolders. —  The  rule  applies  when  the 
lawful  possession  of  lien-holders  is  wrongfully  disturbed  by  an 
official  act  in  .abuse  of  a  writ  of  attachment.  Every  argu- 
ment in  its  favor  when  owners,  who  are  not  parties,  are  dis- 
possessed is  equally  applicable  when  any  lawful  possession  is 
thus  molested.  The  supreme  court  in  deciding  Lammon  v. 
Feusier,  above  cited,  said  that  it  did  so  "  upon  the  weight  of 
authority  as  well  as  upon  principle,"  yet  it  had  but  recently 
held  that  a  marshal  who  had  seized  goods  in  the  possession  of 
chattel  mortgao-ees  under  an  attachment  writ  directed  acjainst 

1  State  t'.  Jennings,  4  Ohio  St.  418,  Lucas,  93  id.  585;  and  cases  cited 
423.  ante,  §  310,  note  5. 

2  City  of  Lowell  v.  Parker,  10  Met.  Against  the  rule:  Carey  v.  State, 
309;  Grinnell  v.  Phillips,  1  Mass.  34  Ind.  10">;  Jenkins  u.  Lemonds,  29 
530.  id.   294 ;  Gerber  v.  Ackley,  37  Wis. 

3  For  i/ientZe;  Charles  r.  Haskins,  43  (same  title,  32  id.  233);  McEl- 
11  la.  329;  Turner  v.  Killian,  12  Neb.  haney  v.  Gilleland,  30  Ala.  183;  Gov- 
580 ;  Holliman  v.  Carroll,  27  Tex.  ernor  v.  Hancock,  2  id.  728 ;  State  v. 
23 ;  State  v.  Fitzpatrick,  64  Mo.  185 ;  Conover,  4  Dutch.  224 ;  State  v.  Long, 
Jewell  V.  Mills,  3  Bush,  62;  Green-  8  Iredell,  415;  State  v.  Brown,  11  id. 
field  V.  Wilson,  13  Gray,  384;  Car-  141;  Brown  v.  Mosely,  11  Smedes  & 
mack  V.  Commonwealth,  5  Binney,  M.  354;  Peoples.  Schuyler,  5  Barb. 
184;  Brunott  v.  McKee,  6  W^atts  &  166  (reversed  in  4  N.  Y.  173);  Ex 
S.  513 ;  Mayor  of  New  York  v.  Sib-  parte  Reed,  4  Hill,  572  (overruled  in 
barns,  3  Abb.  App.  266 ;  Gumming  4  N.  Y.  173). 

V.  Brown,  43  N.   Y.  514;  People  v. 


GG2  SUITS    AGAINST   ATTACHING    OFFICER.  [§  981. 

the  property  of  the  defendant  was  not  liable  to  suit  in  a  state 
court,  as  a  trespasser,  to  the  persons  disturbed  who  were  not 
parties  to  the  suit.^  The  law  stated  in  the  Lamraon  case: 
"  A  person  other  than  the  defendant  named  in  the  writ,  whose 
property  is  wrongfully  taken,  may  indeed  sue  the  marshal, 
like  any  wrong-doer,  in  an  action  of  trespass,  to  recover  dam- 
ages for  the  wrongful  taking;  and  neither  the  official  char- 
acter of  the  marshal  nor  the  writ  of  attachment  affords  him 
any  defense  to  such  an  action,"  if  inconsistent  with  the  doc- 
trine of  the  Densmore  case  (last  cited),  is  later,  and  it  must 
govern. 

§  981.  A  mortgagee  disturbed  in  his  possession  and  wronged 
by  the  sheriff  has  his  action  therefor  even  though  he  has  been 
cited,  interrogated  and  discharged  as  trustee  or  garnishee  in 
the  case.  If  he  has  appeared  and  answered  that  he  holds  no 
goods,  effects  or  credits  of  the  defendant,  and  makes  no  men- 
tion of  the  existence  of  the  mortgage  —  not  being  interro- 
gated respecting  it  —  and  is  thereupon  discharged  without 
objection  on  the  part  of  the  plaintiff,  he  is  held  to  be  in  the 
position  of  a  mortgagee  who  has  not  been  cited  in  the  gar- 
nishment at  all,  and  he  mscy  therefore  maintain  an  action  for 
any  wrong  done  him  by  a  subsequent  sale  of  the  goods  and 
payment  of  the  proceeds  to  the  attaching  creditor.^  Dis- 
charge, under  such  circumstances,  operates  as  a  dissolution  of 
the  attachment,^  and  this  is  given  as  a  reason  why  the  mort- 
gagee may  sue;  but  it  has  been  held  that  if  he  is  defaulted  foi* 
non-appearance  after  notice,  and  the  garnishment  thereupon 
sustained,  he  cannot  sustain  such  action  against  the  sheriff.* 
It  would  seem,  however,  that  if  the  interrogatories  do  not  re- 
quire any  disclosure  respecting  a  mortgage,  his  rights  as  a 
mortgagee  should  not  be  denied  because  of  remissness  as  a 
garnishee. 

1  Densmore  v.  Matthews,  109  U.  S.  3  Martin  v.  Bailey,  1   Allen,  381 ; 

316.     See  ante,  §§  158,  159,  234,  235.  Hayward  v.  George,  13  id.  66. 

i^Goulding  v.  Hair,  133  Mass.  78;  *  Flanagan  v.  Cutler,  121  Mass.  96. 
Boynton  v.  Warren,  99  id.  173. 


§  982.]  EEPLEVIN    SUIT    AGAINST    OFFICEE.  663 

III.  Replevin  Suit  Against  the  Officer. 

§  982.  What  court. —  It  is  held  that  an  action  of  replevin 
will  not  lie  against  a  marshal  for  taking  the  property  of  a 
person  not  named  in  the  writ  of  attachment  on  mesne  process, 
and  holding  it  in  his  official  custody  under  color  of  such  writ 
in  any  other  court  than  that  from  which  the  writ  was  issued 
and  in  which  the  property  is  detained.  Kot  only  such  action, 
but  any  other  to  recover  the  property  specifically,  is  held 
illegal  if  brought  in  any  court  but  that  which  has  control  of 
iheres,  for  the  reason  that  property  seized  by  an  officer  acting 
by  virtue  of  a  court's  process  is  to  be  deemed  in  the  court's 
oustod3^  whether  rightfully  attached  or  not.  Exception  is 
made  in  favor  of  courts  having  direct  supervisory  control,  or 
superior  jurisdiction,  over  the  tribunal  in  possession.  This  doc- 
trine, that  neither  replevin  nor  any  other  action  to  regain 
possession  will  lie  in  a  different  court  from  that  in  which 
the  attachment  writ  w^as  issued  by  the  person  wrongfully 
dispossessed,  is  treated  by  the  supreme  court  as  definitely 
settled.^ 

The  doctrine  is  extended  to  cases  in  which  wrongful  seizure 
has  been  made  under  valid  final  process.  Property  seized  in 
execution  cannot  be  replevied  by  one  who  is  not  a  party  to 
the  suit  and  w4io  is  the  owner  of  the  property  levied  upon  as 
that  of  the  defendant,  unless  he  sue  in  the  court  which  has 
control  of  the  property.  The  same  argument  is  used  with  re- 
spect to  final  as  to  mesne  process.  It  is  —  that  conflict  of  juris- 
diction would  ensue  should  the  action  of  replevin  in  a  differ- 
ent court  be  allowed.^ 

iLammon  V.  Feusier,  111  U.  S.  19,  process,  under   which   the    marshal 

20,  citing  Buck  v.  Colbath,  3  Wall,  had  seized   and  held   the  property 

i>34,  341 ;  Freeman  17.  Howe,  24  How.  replevied,  was    an    attachment   ac- 

450;  Krippendorf  u.  Hyde,  110  U.  S.  cording    to    the    state    practice    of 

276.  Massachusetts,  being  mesne  process, 

2Covell  V.  Heyman,  111  U.  S.  176,  directed,  however,  not  against  prop- 
distinguishing  Buck  V.  Colbath,  and  erty  specifically  described,  but  com- 
affirming  the  other  three  cases  last  mandiug  a  levy,  as  in  case  ot  fi.  fa., 
cited.  The  court  said,  through  Mr.  upon  the  property  of  the  defendant. 
Justice  Matthevi's:  "The  case  of  Whether  that  difference  is  material 
Freeman  v.  Howe,  24  How.  450,  was  is,  perhaps,  the  only  question  to  be 
precisely  like  the  present  case  in  its  considered,  for  the  doctrine  of  that 
circumstances,  except  that  there  the  decision  is  too  firmly  established  in 


664:  SUITS    AGAINST    ATTACHING    OFFICER.       [§§  983,  984. 

§  983.  Jurisdiction  confined  to  one  court. —  Mr.  Justice  Kel- 
son (approvingly  quoted  in  the  case  last  cited)  put  the  rule 
distinctly  on  the  ground  that  jurisdiction  over  the  same  prop- 
erty could  not  exist  in  two  courts  at  the  same  time;  that  if  a 
state  court  has  it  over  a  res  in  an  attachment  suit,  a  federal 
court  cannot  acquire  it  b}'^  action  of  its  marshal,  for  the  pur- 
poses of  a  general  proceeding  in  rem  j  and  he  said,  for  the 
supreme  court,  that  "the  question  as  to  which  authority  should 
for  the  time  prevail"  does  "not  depend  upon  the  rights  of  the 
respective  parties  to  the  property  seized,  whether  the  one  was 
[is]  paramount  to  the  other,  but  upon  the  question  which  juris- 
diction [has]  first  attached  by  the  seizure  and  custody  of  the 
property  under  its  process."^ 

§  984.  The  court,  in  the  Covell  case,  comparing  attachment 
and  execution,  say  that  "  there  is  nothing  in  the  nature,  office 
or  command  of  the  two  descriptions  of  process,  by  which,  so 
far  as  the  question  here  involved  is  concerned,  they  can  be 
distinguished.  One  is  mesne  process  and  the  other  final ;  but 
in  the  courts  of  the  United  States  the  attachment  cannot  be 
used,  as  in  the  practice  of  other  jurisdictions,  as  means  of  com- 
pelling the  appearance  of  the  defendant,  or  of  founding  juris- 
diction as  a  proceeding  in  rem^  Can  any  differenpe  be  dis- 
covered between  an  ancillary  attachment  in  a  United  States 
court  and  one  in  a  state  court?  There  is  none.  In  both  the 
jurisdiction  is  special;  in  both  the  remedy  is  statutory;  in  both, 
the  property  constituting  the  res  must  be  in  court  or  there  is 
no  jurisdiction  over  U'^  in  neither  can  there  be  any  compul- 
sion of  the  personal  debtor  to  come  into  court  by  attaching 
his  property;  in  neither  can  there  be  any  "  founding  of  juris- 
diction "  by  seizure  only;  in  both  there  is  personal  jurisdiction 
of  the  debtor  cited  or  appearing;  but  when  jurisdiction  of  a 
thing  or  a  person,  or  both,  has  been  acquired  by  a  federal 
court,  a  state  court  cannot  divest  it  —  and  mce  versa.,  as  this 
case  conclusively  holds.  En  passant,  it  seems  that  the  reader 
would  be  likely  to  notice  the  ohiter  relative  to  compelling 
appearance,  and  that  dissent  should  be  interposed;  but  noth- 

this  court  to  be  longer  open  to  ques-        ^  Freeman  v.  Howe,  supra,  citing 
tion."   A  review  of  leading  decisions    Taylor  v.  Carryl,  20  How.  583. 
follows,   and   the    conclusion   is  as 
stated  in  the  text. 


§§  985,  9SG.]         EEPLEVIN    SUIT    AGAINST   OFFICER.  G65 

ing  further  is  needed  here,  since  it  has  been  suggested  else- 
where that  attachment  as  distress  has  fallen  into  disuse.  Such, 
attachment  is  without  statutory  warrant.  The  doctrine  of  the 
decision  did  not  seem  to  need  the  last  sentence  above  quoted. 

§  985.  Bight  to  liold. —  It  is  merely  ^z^asZ-jurisdiction  that  a 
court  obtains  b}'  means  of  a  wrongful  seizure  under  a  valid 
writ.  It  is  simply  the  right  to  hold  possession  on  the  pre- 
sumption that  the  attaching  officer  has  obeyed  the  writ  and 
taken  the  property  of  the  defendant.^  This  presumption  jus- 
tifies the  court  in  resisting  interference  from  any  other  court 
except  one  having  supervisory  powers.  It  is  for  the  court 
thus  possessed  to  decide  whether  the  attachment  was  lawful  — 
not  for  some  other  tribunal  to  do  so. 

The  profession  would  be  misled  by  the  decisions  in  the 
Lammon  and  Covell  cases  should  it  understand  the  supreme 
court  to  say  that  the  jurisdiction  acquired  by  the  wrongful 
seizure  of  another's  property  in  a  suit  against  the  defendant 
is  such  as  to  justify  the  condemnation  of  the  property  after 
the  presumption  has  been  removed.  So  soon  as  the  court  in 
possession  is  legally  informed  that  its  possession  is  unlawful, 
it  is  bound  to  restore  the  property  to  its  owner.  If  upon  evi- 
dence, or  upon  the  admission  of  the  plaintiff,  or  upon  the 
correction  of  the  officers  return,  the  fact  should  appear  that 
the  property  belongs  to  another,  or  that  the  right  of  posses- 
sion is  in  another,  there  must  be  an  order  of  release.  It  would 
be  unjust  to  the  authors  of  the  opinion  in  the  two  cases  above 
mentioned  to  attribute  to  them  the  assertion  that  tortious 
attachment  under  a  valid  writ  gives  jurisdiction  in  the  sense 
of  right  and  power  to  try  the  cause. 

§  98G.  Collateral  attack.—  Would  not  the  owner  of  prop- 
erty condemned  as  another's  in  an  attachment  cause  in  which 
the  owner  was  not  a  party  have  the  undoubted  right  of  col- 
lateral attack  upon  the  judgment?  Would  not  the  absence  of 
jurisdiction  to  try  the  cause  plainly  appear  upon  his  proving 
that  the  property  was  his  when  it  was  held  as  the  res  in  a 

1  French  v.  Reel,  61  la.  143 :  Held  under     which    the    officers    justify 

that  there  is  a  presumption  in  favor  emanated  from  a  court  authorized 

of  the  due  execution  of  papers  ema-  to  issue  it,  its  sufficiency,  etc.,  will 

nating  from  a  public  office,  and  upon  be  presumed, 
proof  that   the  writ  of  attachment 


66G  SUITS    AGAINST    ATTACHING    OFFICEK.  [§  987. 

suit  against  the  attachment  defendant,  and  subsequently  sold 
to  effectuate  a  judgment  rendered  in  such  suit?  That  he 
would  have  such  right,  and  tliat  absence  of  jurisdiction-to-try 
would  thus  appear,  conclusively  shows  that  the  only  reason 
"why  other  courts  cannot  replevy  the  res  wrongfully  held  in 
the  attachment  case  is  that  the  quasi-right  of  the  tribunal  in 
possession  is  to  determine  for  itself  wliether  the  seizure  was 
lawful,  under  liability  of  having  its  determination  subsequently 
disregarded  if  it  should  proceed  further  in  the  cause  without 
statutory  authority, 

Mr.  Justice  Nelson  thus  understood  this  matter  when  (as 
quoted  above)  he  described  it  as  "  the  question  as  to  w^hich 
authority  should  /br  the  time  2^'^"<^vail/  "  id  est^  whether  the 
court  in  possession  or  the  one  seeking  to  replevy  should  decide 
upon  the  right  of  possession.  Jurisdiction  to  settle  this  ques- 
tion is  what  the  court  has  upon  wrongful  seizure  as  an  official 
act  under  a  valid  writ. 

Thus  rightly  understanding  the  recent  deliverances  of  the 
supreme  court  (in  accord  with  previous  ones),  the  profession 
will  appreciate  the  utilit}''  of  the  doctrine,  and  avoid  the  errors 
that  would  ensue  from  misconstruction. 

§987.  Owner's  remedy. —  Is  there  then  no  remedy  for  the 
dispossessed  owner,  bereft  under  a  writ  not  directed  against 
himself  or  his  propert}^?  Suit  upon  the  bond  is  not  always 
an  adequate  one.  He  may  prefer  the  specific  property  to  its 
value  in  damages.  He  may  have  been  robbed  of  an  heir-loom 
Avhich  is  priceless  in  his  e^^es.  His  right  is  to  get  the  thing 
back,  whether  it  be  a  family  relic  or  common  merchandise 
easil}'^  replaced  by  a  reinvestment  of  its  moneyed  value.  How 
is  he  to  get  it? 

B}^  replevin  where  he  can  bring  the  action  without  clash  of 
jurisdiction :  in  the  court  which  has  custod\^  of  the  thing.  The 
supreme  court  has  pointed  out  the  methods  by  which  the 
wronged  owner  can  obtain  restitution  when  the  property  is 
in  a  federal  court.^  In  a  pending  attachment  cause  he  may 
intervene  and  claim  his  property.  He  may  institute  an  ancil- 
lary proceeding  in  the  case.^  He  may  sue  upon  the  marshal's 
official  bond,  or  sue  that  officer  for  trespass. 

iKrippendorf  v.  Hyde,  110  U.  S.        sm. 

276. 


§§  988,  989.]         KEPLEVIN    SUIT    AGAINST   OFFICEK.  667 

§  988.  Replevin  is  the  most  usual  resort  in  the  state  courts. 
Conflicts  of  jurisdiction  would  occur  among  them  should  they 
not  forbear,  through  comity,  to  intermeddle  with  each  other. 
"Where  there  is  no  statutory  regulation  on  the  subject,  comit}^ 
involves  a  principle  which  should  govern  courts  of  concurrent 
jurisdiction.  It  is  law  everywhere  that  when  one  court  has 
acquired  jurisdiction  of  a  thing  or  a  person,  another  of  equal 
or  inferior  grade  cannot  divest  it;  nor  one  of  superior,  except 
as  authorized  by  law.  The  real  question  of  difficulty  has 
been  whether  any  jurisdiction  is  acquired  by  a  wrongful 
seizure. 

The  law  in  general  terms  may  be  thus  stated  when  conflict 
of  jurisdiction  is  out  of  the  question:  When  the  property  of 
one  who  is  not  a  part}''  to  the  suit  is  attached  in  a  proceeding 
between  the  parties,  he  may  bring  action  against  the  sheriff; 
and  replevin  is  a  proper  remed}^^  The  sheriff  may  defend 
against  such  a  suit,  brought  by  mortgagees,  by  showing  that 
they  knew  of  the  antecedent  right  of  the  attaching  creditor 
before  thev  took  their  morto:ao:e.- 

§  989.  Effect  of  judgment  in  rem. —  In  the  case  first  above 
cited,  the  court  first  inquires:  "  Does  a  judgment  in  rem  in  at- 
tachment, where  goods  belonging  to  a  person  other  than  the  de- 
fendant in  the  attachment,  and  upon  which  there  is  no  express 
prior  lien  in  favor  of  the  attaching  creditor,  have  been  seized 
by  the  sheriff,  give  the  sheriff  the  right  to  hold  the  goods 
against  the  owner;  or,  in  other  words,  convert  what  was  be- 
fore a  tortious  possession  into  a  lawful  one?"  The  court 
found  the  true  answer  in  the  limited  effect  of  such  actions 
against  property  as  herein  repeatedl}''  set  forth,  and  said  (fol- 
lowing previous  decisions)  ^  that  "  the  ordinary  proceeding  by 

1  Samuel  v.   Agnew,   80   111.    553;  Ind.  265 ;  Rosenfield  r.  Case,  87  Mich. 

Griswold  v.    Sundback    (S.    D.),   57  295 ;  McConnell  u.  Langdon,  2  Idaho, 

N.  W.   339;    Martin  v.   Gilbert,  119  892;  Hakanson  v.  Brodke,  36  Neb. 

N.  Y.  298;  Heagle  «. 'Wheeland,  64  42;   Merrill  v.   Wadgewood,   25  id. 

111.  423  (though  not  an  attachment  283;  Wafer  v.  Bank,  36  Kan.  293; 

suit);  Cliraeru.  Russell,  2 Blackf,  172;  Johnson,    etc.    v.    Railroad,  52  Mo. 

Daggett  V.  Robins,  id.  415 ;  Clark  v.  App.  407. 

Skinner,  20  Johns.  465;    Thompson  2  Harmon  t'.  Clippert,  58  Mich.  377. 

V.  Butler,  14  id.  84 ;  Garner  v.  Camp-  3  Germain  v.  Steam  Tug  Indiana, 

bell,    15    id.   401;    Judd    v.    Fox,   9  11  111.  535;  Propeller  Hilton  r.  Miller, 

Cowen,  259;  Wells  v.   Baldwin,  61  62  id.  230. 


668  SUITS    AGAINST    ATTACHING    OFFICER.  [§  990. 

attachment,  although  a  proceeding  in  rem,  has  no  such  con- 
clusive effect  as  a  decree  in  admiralty;  that  a  sale  under  it 
does  not  divest  any  liens  of  a  superior  degree,  nor  any  ante- 
cedent liens  of  the  same  degree."  And  the  court  held  that  a 
third  person  owning  the  attached  goods  might  recover  them 
of  the  sheriff. 

While  proceedings  in  rem  by  attachment  are  of  limited 
character  under  nearly  all  the  statutes,  exceptions  have  some- 
times been  made  in  authorizing  the  attachment  of  water-craft. 
In  Missouri  it  was  held  that  the  condemnation  and  sale  of  a 
steamboat,  to  satisfy  a  lien  under  the  water-craft  law  of  that 
state  enforced  by  attachment,  gave  the  purchaser  a  title  free 
from  all  other  liens.^ 

§  990.  Under  a  statute  of  Indiana  authorizing  all  lien-hold- 
ers to  intervene  in  a  suit  for  wages,  supplies,  etc.,  against  a 
vessel,  it  was  held  that  all  non-appearers  were  concluded  by 
the  attachment  judgment  against  a  steamboat.  Though  the 
statute  was  silent  with  respect  to  subsequent  suits  by  lien- 
holders  against  a  vessel  condemned  and  sold  at  the  suit  of  the 
first  attacher,  the  court  held  that  the  admiralty  practice  was 
applicable;  that  they  could  not  molest  the  pui'chaser  who  ac- 
quired under  the  judgment  and  sale,  and  that  their  onl}--  rem- 
edy was  b}'^  personal  action  against  their  personal  debtor.^ 
Subsequently  it  was  held  that  such  a  claim  being  exclusively 
enforcible  in  admiralty  as  a  maritime  lien,  the  state  court 
could  not  entertain  such  a  general  proceeding  in  rem;  but 
that  such  general  proceeding  "  for  building,  fitting  out  and 
constructing"  a  steamer  is  cognizable  in  such  court.  In  such 
a  case  the  court  said:  "We  are  not  aware  that  such  a  claim 
can  be  enforced  in  admiralty.  We  understand  quite  the  con- 
trary proposition  to  be  adjudged  in  The  People's  Ferry  v. 
Beers,  20  How.  393,  and  Koach  v.  Chapman,  22  id.  129.  It 
does  not  follow  because  the  statute  has  authorized  a  proceed- 
ing in  rem  to  enforce  the  lien  which  it  gives  to  the  builder  of 
a  vessel  that  the  suit  to  enforce  it  must  be  in  admiralty.  The 
jurisdiction  of  the  federal  courts  cannot  be  thus  enlarged  by  a 
state  statute.     It  was  so  expressh'-  held  in  Koach  v.  Chapman, 

1  Steamboat  Raritan  v.  Smith,  10  2  The  Steamboat  Rover  v.  Stiles,  5 
Mo.  537.  Blackford.  4S4. 


§§  991,  992.]         EEPLEVIX    SUIT   AGAINST    OFFICER.  669 

supra.  Kor  can  we  perceive  an3'thing'  in  our  legislation  giv- 
ing the  builder  a  lien  which  is  in  contravention  of  the  consti- 
tution or  laws  of  the  United  States.*'  ^ 

§  991.  Proceed i)}(/s  in  rem  under  state  law. —  The  constitu- 
tional right  of  states  to  resort  to  proceedings  at  law  of  this 
character,  such  as  will  preclude  all  persons  after  general  no- 
tice followed  by  judgment  against  the  res,  seems  entirely  free 
from  doubt.  It  has  not  been  delegated  exclusively  to  the  gen- 
eral government,  though  like  proceedings  in  adrniralt}'  have 
been  thus  delegated.  The  right  of  a  state  legislature  to  au- 
thorize such  a  proceeding  at  law  was  strongly  asserted  by  the 
supreme  court  of  Massachusetts  through  Chief  Justice  Shaw.- 
It  was  so  held  with  reference  to  the  forfeiture  of  things  pro- 
ceeded against  as  guilty  or  offending.  Statutes  of  states  au- 
thorizing such  proceedings  against  such  property  have  been 
sustained  b}'^  supreme  courts  of  states  and  that  of  the  United 
States.^ 

Attachment  proceedings,  being  never  prosecuted  for  for- 
feiture but  always  to  enforce  a  lien,  and  usually  both  to  create 
and  enforce  it,  ought  not  to  be  of  general  character,  with  no- 
tice to  conclude  all  persons  and  destroy  unasserted  liens  and 
rights  to  property;  and  the  exceptional  statutes  with  regard 
to  water-craft,  above  noticed,  have  properly  had  little  fol- 
lowing. There  is  not  the  same  justification  for  such  statutes 
as  there  is  for  admiralty  law  under  which  liens  are  enforced 
by  like  proceedings, 

§  992.  Sureties. —  Sureties  on  a  forthcoming  bond  have  no 
action  of  replevin  against  the  ofhcer  for  levying  execution  in 

1  Wyatt  V.  Stuckley,  29  Ind.  279.  Supervisors,  11  id.  136;  Leon  v.  Gal- 

This  case  was  followed  in  Stinton  v.  ceran,  id.  185.     .     .     ." 

Steamboat  Roberts,  34  Ind.  448,  and  2  Fisher  v.  McGirr,  1  Gray,  28. 

(same  title)  46  Ind.  476.     In  the  last  3  Beer    Co.    v.   Massachusetts,    97 

the  court  said:  "It  is  well  settled  U.  S.  25;   Bartemeyer  v.    Iowa,  18 

that  the   admiralty  jurisdiction   of  Wall.    129;    Commonwealth  v.    In- 

the  United  States  does  not  extend  to  toxicating   Liquors,    128    Mass.    72; 

cases  where  a  lien  is  claimed  by  the  Our  House,  No.  2,  v.  State,  4  Greene, 

builders  of  a  vessel,  for  work  done  172;  Santo  v.  State,  2  la.  165.     See 

and  materials  furnished  in  its  con-  State  v.  Wheeler,  25  Ct.  290 ;  Com- 

struction.      .     .     .     The  Steamboat  monwealth  v.  Matthews,  129  Mass. 

Orleans  v.  Phoebus,  11  Pet.  175;  The  485,  487. 
Belfast,   7  Wall.    624;  Amy  v.  The 


670  SUITS    AGAINST    ATTACHING    OFFICEK.  [§  992. 

a  subsequent  suit  after  the  property  has  been  surrendered  to 
the  defendant  in  the  attachment  suit.'  That  is  not  their  rem- 
edy.  If  the  sureties  have  been  fraudulently  induced  by  the 
sheriff  to  sign  a  replevin  bond,  they  will  be  liable  thereon,  but 
the}'^  may  recover  damages  of  the  oflBcer.^  Sureties  on  a  re- 
plevin bond  cannot  complain  that  the  attachment  bond  was 
executed  by  the  plaintiff's  attorney  when  their  principal  has 
not  raised  the  objection,^ 

1  Stevenson    v.   Palmer,    14  Colo.        2  Craig  u.  Herring,  80  Ga.  709. 
565;  Lusk  v.  Ramsay,  3  Munf.  417;        3  Id. 
Gray  v.  Perkins,  12  Sm.  &  M,  633. 


CHAPTER   XXV. 

DAIklAGES  AGAINST  THE  PLAINTIFF  FOR  WRONGFUL  ATTACH- 

MENT. 

I.  Reconvention §§  993-99S 

II.  Suit  After  Dissolution 999-1003 

III.  The  Bond  Obligation 1003-1006 

IV.  Suit  on  the  Attach^ient  Bond       1007-1017 

V.  Exemplary  Da^iages 1018-1036 

VI.  Recovery  of  Costs  and  Fees 1037-1035 

I.   Reconvention. 

§  993.  Not  generally  mitliorized.—  To  employ  the  extraor- 
dinary remedy  of  attachment  when  the  ordinary  is  adequate; 
to  create  a  lien  upon  the  property  of  a  debtor  to  secure  an  un- 
privileged debt,  by  means  of  a  false  affidavit;  to  seize  and 
detain  unincumbered  property  or  credits  of  the  debtor,  prior 
to  judgment,  for  the  purpose  of  execution,  when  the  plaintiff 
is  not  entitled  to  judgment,  is  an  abuse  of  the  statutory  relief 
which  the  law  affords  to  the  honest  creditor.  If,  by  such 
abuse,  the  defendant  is  injured,  he  may  recover  damages.  As 
a  general  rule,  his  right  of  action  for  damages  does  not  arise 
until  there  has  been  dissolution  of  attachment  upon  the  plaint- 
iff's failure  to  maintain  it  by  judgment;  but  there  are  different 
provisions  in  different  states,  and,  in  some,  the  defendant  may- 
recoup  or  reconvene  for  damages  in  the  attachment  suit  itself. 
First,  then,  reconvention  will  be  here  considered. 

§994.  Reconvention  is  of  the  nature  of  a  cross-bill;  it  is 
pleaded  by  the  defendant  in  his  answer  to  the  attachment 
suit,  in  which  the  defendant  assumes  the  position  of  plaintiff 
in  reconvention  and  alleges  whatever  damages  he  has  suffered, 
their  character  and  amount,  and  prays  for  judgment  against 
the  attaching  creditor.  To  such  cross-action  the  original 
plaintiff  may  plead  any  appropriate  defense,  unless  issue  is, 
under  the  practice  of  the  state,  deemed  to  be  joined  b}^  the 
filing  of  the  petition  for  attachment.  The  ojins  is  none  the 
less  upon  the  attaching  creditor  to  make  good  the  allegations 


C73  DAMAGES    FOE   WEONGFUL    ATTACHMENT.  [§  995. 

of  his  petition  by  reason  of  the  reconvenor's  averments  that 
the  attachment  was  wrongfuHy  sued  out  or  wrongfully  ex- 
ecuted, since  they  are  at  issue  by  the  answer;  but  the  burden 
is  on  him  who  claims  damages  to  prove  that  he  has  suffered, 
injury  by  reason  of  the  wrongful  attachment.  He  must  allege 
that  the  damages  claimed  have  not  been  paid.'  His  allega- 
tions of  injury  are  proper  matters  for  the  attaching  creditor 
to  answer  by  way  of  joining  issue  on  the  reconventional  de- 
mand. 

§995.  Allowed  in  several  states. —  Although  the  injury  is 
dependent  upon  the  decision  in  the  attachment  case,  and  can- 
not be  known  to  exist  till  that  has  been  rendered,  j'^et  busi- 
ness is  expedited  and  justice  more  readily  administered  by 
trying  both  issues  together,  so  that  the  court,  when  vacating 
the  attachment,  may  award  damages  to  the  reconvenor  at 
the  same  time.  This  is  very  common  practice  in  Texas  and 
Iowa;  and  is  allowed  in  Pennsylvania,  ISTebraska,  Minnesota, 
Maryland  and  other  states.^  There  must  be  statutory  war- 
rant for  it.^  The  whole  controversy  between  the  parties  is 
adjudicated  as  one  cause;  the  attachment  is  tried,  and  evi- 
dence adduced,  and  arguments  heard,  both  with  reference  to 
the  claim  for  debt  and  the  counter-claim  for  damages  for  the 
alleged  wrongful  proceeding.  Much  time  and  labor  is  thus 
saved;  for  the  testimony  which  the  defendant  offers  to  defeat 
the  attachment  is  usually  what  he  would  offer  to  sustain  a 
separate  suit  for  damages  for  wrongful  attachment. 

Keconvention  under  such  circumstances  is  anomalous,  for 
the  declaration  on  the  attachment  bond  is  thus  made  before 
any  liability  on  it  has  been  matured.  If  the  evidence  is  such 
that  wrongful  attachment  has  been  proved  and  resultant  in- 
jur}'-  established,  the  jury  gives  the  verdict  covering  both  is- 
sues, and  the  court  gives  the  reconvenor  judgment  on  the 
bond  when  he  decrees  the  dissolution  of  the  attachment,  and 
judgment  for  the  defendant  in  the  action  against  him  for  debt. 

1  Hen  eke  v.  Johnson,  62  la.  555.  Able,  15  Kan.  584 ;  Eead  v.  Jeflfries, 

2  Hardeman  v.  Morgan,  48  Tex.  16  id.  534;  Wagner  v.  Stocking,  23 
103;  Lowenstein  v.  Monroe,  55  Ta.  Ohio  St.  297;  Phinkett  u.  Sauer,  101 
83;  Turner  v.  Lytle,  59  Md.  199;  Pa.  St.  356;  Halfpenny  v.  Bell,  83 
Raymond  v.  Green,  12  Neb.  215.  See  id.  128;  Hunt  v.  Gilmore,  59  id.  450. 
Boyer  v.  Clark,  3  id.  161 ;  Stevens  v.        » Atkins  v.  Svvope,  38  Ark.  528. 


§§  996,  997.]  KEcoNVENTioN.  673 

§  996.  By  counter-claim  (as  the  reconventional  demand  is 
styled  in  Iowa)  both  actual  and  exemplary  damages  may  be 
passed  upon  on  the  trial  of  the  attachment  suit.  The  defend- 
ant who  has  averred  that  the  proceeding  against  him  is  both 
wrongful  and  malicious,  and  has  prayed  for  damages  in  a 
round  sum,  ma}'-  be  required  b}^  motion  to  specify  what  he 
demands  as  actual  and  what  for  exemplary  damages,  and 
both  chiiras  go  together  to  the  jury.^  If  thus  required  by 
motion,  it  is  not  obligatory  upon  the  defendant  to  confine 
himself  to  two  allegations,  one  for  actual  and  the  other  for 
exemplar}^  damages,  but  he  may  itemize  his  demand  under 
several  heads,  some  tending  to  recovery  for  compensatory 
loss,  and  others  for  vexatious  and  malicious  prosecution.^ 
Losses  and  expenses  incurred  in  defending  against  the  attach- 
ment proceeding,  those  sustained  by  being  deprived  of  the  use 
of  property  attached,^  by  injury  thereto,  and  depreciation  of 
its  value,  give  rise  to  compensatory.damages  when  the  attach- 
ing creditor  was  actuated  by  good  motives,  but  to  exemplary 
damages,  or  smart  money,  when, his  motives  were  malicious.* 
Therefore,  when  the  proceeding  is  vexatious,  injurious  and 
Avithout  probable  cause  from  its  incipiency,  there  is  no  occa- 
sion for  the  counter-claimant  to  specify  certain  items  of  his 
claim  as  entitling  him  to  one  species  of  redress  and  others  as 
grounds  for  a  different  kind;  but  such  discrimination  may  be 
of  utility  when  an  attachment  justifiably  sued  out  has  been 
maliciousl  V  prosecuted  by  some  particular  act.  When  required 
by  motion  to  distinguish  between  what  is  claimed  as  actual 
and  what  for  exemplary  damages,  the  defendant  need  onh'' 
specify  the  two  sums.  In  a  reconvention  by  a  partner  for 
damages  suffered  by  hira  in  an  attachment  of  the  goods  of  his 
firm  induced  by  the  collusion  of  another  partner  with  the  at- 
taching creditor,  he  should  make  the  colluding  partner  a  party 
defendant.^ 

§  997.  Defense. —  In  resisting  a  counter-claim,  the  attaching 
creditor,  it  has  been  held,  need  not  establish  that  he  had  such 
grounds  of  belief  in  his  right  to  attach  as  would  reasonabl}'' 

1  Dent  V.  Smith,  53  la.  262.  337.     See  Cole  v.  Smith,  83  la.  579; 

2  Lowenstein  v.  Monroe,  55  la.  82.     la.  Code,  §  2996. 

5  Jamison  v.  Weaver,  81  la.  212.  5  Barker  v.   Abbott,    2  Tex.    Civ. 

*  Campbell  v.  Chamberlain,  10  la.     App.  147. 
43 


074  DAMAGES    FOR   WRONGFUL    ATTACHMENT.  [§  998. 

actuate  a  prudent  man  in  matters  of  the  highest  moment  to 
himself,  since  he  would  not  act  upon  belief  if  there  was  a  pos- 
sibility of  its  being  erroneous,  nor  be  so  likely  to  discover 
doubts  in  matters  of  ordinary  importance  as  in  those  of  the 
highest  interest  involving  his  life  or  fortune.  In  matters  of 
the  highest  moment  to  himself,  he  exercises  the  greatest  de- 
gree of  care  and  caution.  The  law  does  not  require  the  exer- 
cise of  this  degree  of  prudence  in  the  formation  of  a  belief  as 
to  the  existence  of  facts  which  are  grounds  for  issuins:  an  at. 
tachment.  It  is  sufficient  if  the  attaching  creditor  shows  that 
he  had  reasonable  grounds  to  believe  the  allegations  of  his 
petition,^  especiall}^  when  the  evidence  justifies  his  apprehen- 
sions.^ 

The  reconvenor  or  counter-claimant  has  the  burden  of  proof, 
just  as  though  the  attachment  suit  had  been  terminated  and 
he  were  suing  for  damages  in  a  separate  action.  His  burden 
is  lessened  by  what  the  attaching  creditor  is  bound  to  prove 
as  to  the  fact  of  attaching  and  by  the  record  which  is  already 
before  the  court;  but  so  far  as  establishing  injury  by  reason 
of  the  abuse  of  the  process  and  the  amount  of  the  injury,  and 
the  malicious  motives  of  the  creditor,  the  onus  is  wholly  on 
the  reconvenor,  just  as  though  he  had  brought  a  separate  ac- 
tion to  recover  damages. 

§  998.  Surety  not  a  i)artij. —  The  defendant  can  recover  on 
the  bond,  by  way  of  reconvention,  only  of  the  principal  obligor, 
since  the  surety  is  not  a  party  to  the  attachment  suit,  and 
therefore  cannot  be  made  one  to  the  cross-action.  This  is  the 
rule  in  lowa;^  and  it  will  hold  good  everywhere  unless  there 
is  a  statutory  provision  to  the  contrar}'-,  so  that  the  surety  cre- 
ates his  obligation  with  a  view  to  such  provision,  or  is  legally 
presumed  to  do  so.  If  judgment  is  thus  obtained  against  the 
principal  alone,  the  suret}^  ought  to  have  his  day  in  court  in 
a  separate  action  before  he  can  be  held,  unless  he  has  waived 
it  by  the  terms  of  the  bond  or  in  some  other  way.  His  right 
of  defense  is  as  sacred  as  that  of  the  principal.  He  ought 
not,  by  reason  of  the  practice  of  reconvention,  be  placed  in  a 

1  Carey  v.  Gunnison,  51  la.  202;  ^Baldwin  v.  Mumford,  35  La.  Ann. 
Vorse  V.  Phillips,  37  id.  428.  348. 

3  Bunt  V.  Rheum,  52  la.  619. 


§  Oi^O.J  SUIT    AFTER    DISSOLUTION    OF    ATTACHMENT.  675 

worse  position  than  he  would  be  in  a  bond  suit  brought  against 
both  obligors  after  the  judgment  vacating  the  attachment. 

Where  the  right  of  reconvening  for  damages  in  the  attach- 
ment suit  itself  is  authorized,  it  is  necessarily  limited  by  the 
jurisdiction  of  the  court  where  that  suit  is  brought  or  is  pend- 
ing when  the  defendant  makes  his  cross-demand.^  If  the  court 
is  only  competent  to  try  causes  in  which  the  demand  does  not 
exceed  a  prescribed  sum  —  say  one  thousand  dollars, —  and  an 
attachment  suit  is  brought  for  that  amount,  and  the  bond  is 
twMc^  as  much  under  statutory  requirement,  the  defendant, 
though  possibly  damaged  to  the  full  extent  of  the  bond,  can- 
not reconvene  for  more  than  a  thousand  dollars.  To  get  all 
his  due,  he  must  sue  by  a  separate  action  in  a  different  court. 

Reconvention  for  damages  sustained  by  a  w^rongful  attach- 
ment in  a  former  suit  cannot  be  made  in  an  action  for  goods 
sold ;  it  was  held  that  such  damages  cannot  be  set  up  as  a 
counter-claim  in  such  action.^ 

II.  Suit  After  Dissolution  of  Attachment. 

§  999.  After  judgment. —  Reconvention  for  damages  while 
the  attachment  suit  remains  pending  is  exceptional:  the  gen- 
eral practice  is  that  the  action  for  wrongful  and  that  for  ma- 
licious attachment  do  not  lie  till  the  attachment  suit  is  at  an 
end.  It  must  have  been  abandoned,  set  aside,  settled  or  de 
cided  in  favor  of  the  defendant  before  he  can  sue  for  dam- 
ages by  reason  of  its  institution  and  prosecution.*  Prior  to 
this,  a  suit  for  damages  would  be  premature.  It  would  be  so, 
though  the  defendant  has  gained  the  attachment  suit,  if  an 
appeal  by  the  plaintiff  is  pending.  "Where,  however,  suit 
upon  the  bond  for  damages  was  brought  while  an  appeal 
from  the  judgment  dissolving  the  attachment  was  pending, 
to  which  suit  prematurity  was  pleaded,  the  plaintiff  was  al- 
lowed to  amend  his  petition  and  aver  that  the  appeal  had 

1  Hardeman  v.  Morgan,  48  Tex.  v.  Tliompson,  3  Met,  (Ky.)  121; 
103.  Smith    v.    Story,    4    Humph.    169; 

2  Schmidt  v.  Bickenbach,  29  Minn.  Spaulding  v.  Wallett,  10  La.  Ann. 
122.  105;  Moor  v.  Wilienberg,  18  id.  22; 

'Kramer  v.  Light  Co.,  95  N.  C.  Accessory  Co.  v.  McCerran,  id.  214; 
277;  Carver  v.  Shelley,  17  Kan.  472;  Harger  v.  Spofford,  46  La.  11;  Kin- 
Atkins  V.  Swope,  38  Ark.  528 ;  Nolle    sey  v.  Wallace,  36  Cal.  462. 


676  DAMAGES    FOK    WRONGFUL    ATTACHMENT.  [§  1000. 

been  decided  in  tlie  supreme  court  adversely  to  the  appel- 
lant; and  the  amendment  was  sustained  and  judgment  on 
the  bond  for  actual  damages  awarded  and  confirmed.^  Had 
the  appeal  been  still  pending,  or  had  a  motion  for  a  new  trial, 
arrest  of  judgment,  or  anything  affecting  the  finality  of  the 
dissolution  of  attachment,  still  remained  undecided,  prema- 
turity could  have  been  properly  pleaded ;  it  is  necessary  that 
the  attachment  be  first  vacated.-  Abandonment  by  the  at- 
taching creditor  is  vacation  of  attachment,^  but  it  will  not 
relieve  him  from  liability  for  damages.* 

§  1000.  The  rule  is  not  universal  that  the  attachment  suit 
must  have  terminated  against  the  plaintiff  before  a  separate 
suit  against  him  may  be  instituted  for  damages  for  wrongful 
attachment.^  A  suit  for  malicious  attachment,  for  exemplary 
damages,  will  lie,  in  some  states,  while  the  attachment  suit 
is  pending  —  as  in  Michigan.^  In  Arkansas  the  plaintiff's 
claim  for  debt,  and  the  defendant's  for  damages,  may  offset 
each  other.^  In  Minnesota  it  is  necessary  to  the  recovery  of 
exemplary  damages  that  the  attachment  be  first  vacated,  but 
not  for  the  recovery  of  actual  damages.^ 

It  has  been  insisted  that  the  defendant  should  make  effort 
to  have  a  wrongful  attachment  vacated  before  suing  for  dam- 
ages on  the  attachment  bond.^  But  though  he  has  made  no 
contest  of  the  affidavit,  if  he  recover  judgment  on  the  merits 
he  may  sue  upon  the  bond.^*^  He  is  not  limited  to  his  bond 
action,  because  the  attaching  creditor  gave  the  undertaking 
to  secure  him.^^ 

Prematurity  cannot  be  pleaded  by  the  attaching  creditor, 

1  McDaniel  v.  Gardner,  34  La.  Ann.  ^  Popplevvell  v.  Hill,  55  Ark.  622. 
341 ;  Dickinson  v.  Maynard,  20  id.  66.  8  Rossiter  v.  Paper  Co.,  37  Minn. 

2  State  V.  Williams,  48  Mo.  210 ;  296.  See  Reynolds  v.  De  Geer,  13 
Pixley  V.  Reed,  26  Minn.  80;  Sloan  111.  App.  113;  McCracken  u.  Coving- 
V.  McCracken,  7  B.  J.  Lee,  626.  ton   Bank,  4  Fed.    602 ;   Stewart  v. 

SErwin  V.  Com.  &  R.  R.  Bank,  12  Sonneborn,  98  U.  S.  187. 

Rob.  (La.)  227.  SEckman  v.   Hammond,   27  Neb. 

4Farrar  v.    Talley,   68  Tex.    349';  611.     See  Rachelman  u.  Skinner,  46 

Steinhart  v.    Leman,   41    La.    Ann.  Minn.  196. 

835.  10  State  v.  Beldsmeier,  56  Mo.  226. 

5  Tynberg  v.  Cohen,  76  Tex.  409.  See   Harper  v.    Keys,   43  Ind.  220 ; 

«  Cadwell  v.  Corey,  91  Mich.  335 ;  Keer  v.  Reece,  27  Kan,  469. 

Brand  v.  Hinchman,  GS  id.  590.    See  n  Lawrence  v.   Hagerman,   56  III. 

Zinn  V.  Rice,  154  Mass.  1.  68 ;  Preston  v.  Cooper,  1  Dill.  589. 


§§  1001,  1002.]       SUIT   AFTER   DISSOLUTION   OF   ATTACHMENT.       GT7 

^vhen  sued  on  the  bond,  if  be  has  merely  been  nonsuited,  or 
put  out  of  court  by  an  exception  or  demurrer,  with  right  to 
sue  again. ^  Any  such  disposition  of  an  attachment,  if  not 
appealed,  is  a  final  vacation  of  the  attachment  proceeding  in 
Avhich  the  bond  was  given;  and  right  of  action  on  the  bond 
immediately  arises,  if  any  injury  has  been  suffered  by  the 
attachment  defendant.  The  renewal  of  the  suit  gives  rise  to 
an  entirely  new  attachment  with  a  new  bond. 

§  1001.  If,  after  an  invalid  attachment  has  been  vacated, 
the  creditor  sue  out  a  valid  attachment  against  the  same 
property  in  a  suit  against  the  same  defendant,  and  the  case  be 
prosecuted  to  judgment,  and  the  property  be  sold  and  its 
proceeds  go  to  pay  the  defendant's  debt,  the  latter  fact  will 
mitigate  damages  for  the  first  and  wrongful  attachment.^ 
Little  more  than  nominal  damages  should  be  awarded.  The 
defendant  should  have  recompense  for  his  outlay  in  defend- 
ing the  first  suit,  but  nothing  more.  There  may  be  cases, 
however,  in  which  he  would  be  entitled  to  much  more.  The 
mere  dismissal  of  a  suit  is  not  always  conclusive,  in  a  suit  for 
damages,  that  the  attachment  was  wrongfully  sued  out.^  And 
judgment  for  the  attaching  creditor  is  not  always  a  bar  to  a 
damage  suit  on  the  bond.* 

^  1002.  Joint  suit. —  Several  persons,  who  have  suffered 
joint  injury  by  attachment,  may  sue  jointly,^  but  only  the 
obligee  can  sue  upon  the  bond."  They  are  not  obliged  to  have 
uninjured  co-obligees  of  the  attachment  bond  united  with 
them  as  plaintiffs.'^  If  the  attachment  has  been  sustained,  so 
far  as  some  of  the  obligees  are  concerned,  the  others  are  not 
therefore  precluded  from  suing  on  the  bond  for  tlieir  own  in- 
juries when  the  attachment  has  been  vacated  as  to  themselves.^ 

1  McDaniel  v.  Gardner,  34  La.  Ann.  ^  Cochrane  v.  Quackenbush,  29 
341;  Cox  V.  Robinson,  2  Rob.  (La.)  Minn.  376;  Boyd  v.  Martin,  10  Ala. 
313.  See  Sharpe  v.  Hunter,  16  Ala.  700;  Masterson  v.  Phinizy,  56  id.  336. 
765.  fi  Mitchell  v.  Chancellor,  14  W.  Va. 

2  Morrison  v.  Crawford,  7  Oreg.  22;  Davis  v.  Commonwealth,  13 
472 ;  Earl  r.  Spooner,  3  Denio,  246.  Gratt.    139;    Edwards   v.   Turner,  6 

SNockless    v.    Eggspieler,   47   la.  Rob.  (La. )  382 ;  Raspilliar  u.  Brown- 

400;    Cooper  v.   Hill,  3  Bush,  219;  son,  7  La.  231. 

Pettit  V.  Mercer,  8  B.  Mon.  51 ;  Eaton  7  Alexander  v.  Jacoby,  23  Ohio  St. 

V.  Bartscherer,  5  Neb.  469 ;  Smith  v.  358. 

Story,  4  Humph.  169.  ^M.;  Dean  v.  Stevenson,  61  Minn. 

4  Bliss  V.  Heasty,  01  111.  338.  175. 


678  DAMAGES    FOR    WRONGFUL    ATTACHMENT.       [§§  1003,   1004. 

The  general  practice  does  not  require  that,  prior  to  a  suit 
on  the  bond  against  all  the  obligors,  there  first  must  be  judg- 
ment obtained  against  the  principal  in  a  separate  action.^ 

III.  The  Bond  Obligation.^ 

§  1003.  Defendants  protection. —  The  protection  of  the  de- 
fendant against  the  wrongful  suing  out  of  the  writ  is  what  the 
bond  is  for.  The  creditor  makes  his  own  preliminary  show- 
ing by  affidavit,  without  cross-examination,  to  bring  himself 
within  the  statutory  authorization  for  the  issuance  of  the  ex- 
traordinary process.  If  he  swears  truly,  there  is  such  a  debt 
and  there  are  such  existing  grounds  as  will  not  only  warrant 
the  cleri<:  to  issue  the  unusual  process  but  will  render  it  his 
duty  to  do  so.  But  what  if  the  affidavit  is  false?  "What  if  the 
debt  is  either  non-existent  or  not  such  as  the  legislator  con- 
templated when  authorizing  attachment  for  a  designated  char- 
acter of  obligation?  What  if  the  defendant  is  not  a  non-resi- 
dent, not  an  absconder,  not  a  concealer  or  fraudulent  disposer 
of  property,  though  alleged  in  the  affidavit  to  be  one  of  these? 

§  1004.  It  is  a  general  though  not  a  universal  statutory  rule 
that  the  clerk  shall  not  issue  the  writ,  notwithstanding  the 
affidavit  that  the  debt  and  the  grounds  are  such  as  to  render 
the  attachment  process  permissible  under  the  law,  unless  the 
creditor  has  given  a  bond,  with  surety,  conditioned  that  he 
will  "  pay  the  defendant  all  such  damages  as  he  may  sustain 
from,  the  wrongful  suing  out  of  the  writ',  "  or,  " all  damages 
which  he  may  sustain  if  the  order  is  wrongfully  obtained ;'''' 
or,  "all  damages  that  he  may  sustain  and  all  costs  that  may 
be  incurred  by  him  in  consequence  of  suing  out  the  attach- 
ment;'''^ or,  "all  damages  that  ma}'  be  sustained  by  reason  of 
the  attachment,"  etc.^ 

1  Bruce  v.  Coleman,  1  Handy,  515 ;  ^  Benedict  v.  Bray,  2  Cal.  251 ; 
Churchill  v.  Abrahaiii,  22  111.  455;  Thompson  v.  Arthur,  Dudley  (Ga.), 
Jennings  v.  Joiner,  1  Cold  well,  695;  253;  Cousins  v.  Brashier,  1  Blackf. 
Dickinson  v.  McGraw,  4  Randolph,  85;  Starr  v.  Lyon,  5  Ct.  538;  Fordr. 
158;  Hcrdon  v.  Forney,  4  Ala.  243.  Woodward,  10  Miss.  260;  Stevenson 
Contra:  Sledge  v.  Lee,  19  Ga.  411;  v.  Robbins,  5  Mo.  18;  State  Bank  v. 
Sterling  City  Mining  Co.  <o.  Cock,  2  Hinton,  1  Dev.  L.  (N.  C.)  397;  Bank 
Col.  24;  Holcomb  v.  Foxworth,  34  of  Albany  t?.  Fitzpatrick,  4  Humph. 
Miss.  265.  311 ;  Briggs  v.  Smith,  13  Tex.  269. 

2  See  eh.  5. 


§  1005.]  BOND   OBLIGATION.  679 

AVherever  the  bond  is  thus  made  a  prerequisite  to  the  issu- 
ance of  the  \A'rit,  the  clerk  would  be  liable  in  damages  if  he 
should  act  without  it;  the  plaintiff  would  also  be  thus  liable; 
and  the  process  itself,  were  it  sufficient  to  protect  the  sheriff 
for  attaching  under  it,  would  be  otherwise  void.  It  would 
not  protect  the  sheriff  in  those  states  where  the  execution  of 
the  bond  must  be  stated  in  the  writ,  if  not  so  stated.  The 
bond  is  as  important  as  the  affidavit  when  made  a  prerequisite 
to  the  writ,  and  should  appear  of  record. 

§  1005.  Not  ajftcting  the  personal  action. —  The  obligation 
to  pay  damages  assumed  in  the  attachment  bond,  in  case  of 
the  wrongful  causing  of  the  writ  to  be  issued,  or  the  wrong- 
ful procedure  under  the  writ,  has  no  reference  to  the  personal 
action  against  the  debtor  considered  apart  from  the  proceed- 
ing against  his  property.  The  institution  of  an  ordinary  action 
against  the  debtor  is  the  creditor's  right,  without  affidavit  and 
without  bond.  The  institution  of  the  extraordinary  action  is 
not  his  right,  unless  he  bring  himself  within  the  statute  and 
take  the  required  obligation ;  but  if  the  defendant  should 
suffer  no  wrong  but  w'hat  would  have  ensued  from  an  ordi- 
nary suit  legally  brought  but  not  sustained  by  evidence,  would 
the  plaintiff  be  liable  upon  the  bond?  Take  this  case:  Affi- 
davit and  bond  being  executed,  and  attachment  issued,  no 
property  is  seized  and  taken  from  the  defendant  —  the  attach- 
ment is  in  the  hands  of  a  third  person,  by  garnishment  accord- 
ing to  the  sheriff's  return ;  but  the  garnishee  denies  that  he  is 
a  creditor  of  the  defendant  or  the  holder  of  ?iny  property  of 
his,  and  is  discharged.  The  personal  action  goes  on  and  re- 
sults in  a  judgment  for  the  defendant.  Whether  the  defend- 
ant can  recover  or  not  depends  upon  the  injur}'^  he  ma}^  have 
sustained  by  the  charges.  He  may  have  been  seriously  slan- 
dered by  a  charge  of  absconding,  for  instance.  If  only  alleged 
to  be  a  non-resident;  or,  if  it  be  conceded  that  he  was  no 
more  damaged  by  reason  of  the  attachment  than  he  would 
have  been  had  an  ordinary  suit  been  unsuccessfully  brought 
against  him,  it  would  seem  that  the  conditional  obligation  of 
the  bond  would  not  have  been  incurred. 

Take  the  case  of  land  attached  when  the  owner  is  not  dis- 
possessed; of  personal  property  only  nominally  attached,  as 
is  sometimes  improperly  done;  of  property  attached  which 


G80  DAMAGES    FOR    WRONGFUL    ATTACHMENT.  [§  1006. 

proves  not  to  be  that  of  the  defendant:  it  seems  clear  in  such 
cases  that  ordinarily  no  obligation  is  incurred  to  the  defend- 
ant for  injury  done  to  property.^  And  the  costs  of  defending 
the  personal  action,  and  the  attornej^'s  fees,  ought  not  to  be 
included  in  damages  for  wrongfully  suing  out  an  attachment 
ancillarj^to  the  main  suit,  if  they  can  be  shown  to  be  not  con- 
sequent from  the  issue  of  the  writ.'-^ 

§  1006.  Plaintiff^s  acts  after  giving  l)ond. — When  the  obli- 
gation is  to  pa}^  such  damages  as  the  defendant  may  recover 
should  it  be  decided  thai  the  attachment  was  wrongfully  ob- 
tained, the  subsequent  acts  of  the  plaintiff  during  the  prosecu- 
tion of  the  suit,  causing  injury  and  loss,  give  rise  to  recover- 
able damages  upon  the  dissolution  of  the  attachment.  It 
would  be  the  same  if  the  bond  were  written  in  the  usual  words, 
"  if  the  writ  is  wrongfully  sued  out,"  or  the  like.  Upon  disso- 
lution, it  legally  appears  that  the  attachment  was  wrongful, 
and  subsequent  acts  are  resultant.  The  obligation  certainly 
includes  the  reparation  of  loss  in  property  caused  by  its  seizure 
and  detention;  its  depreciation,  deterioration  or  destruction. 
Being  injuries  to  the  defendant  directly  traceable  to  the  issu- 
ing of  the  writ,  though  occurring  later  in  the  proceedings, 
they  are  covered  by  the  obligation  assumed  by  the  plaintiff 
Avhen  giving  the  bond.^ 

1  Phillips  V.  Bridge.  11  Mass,  242,  Bush,  283;  Trapnall  v.  McAfee,  3 
248 ;  Watts  v.  Shropshire,  12  La.  Ann.  Met.  (Ky.)  34 ;  Hayrlen  v.  Sample,  10 
797;    Heath    v.   Lent,    1    Cal.    410;    Mo.  215. 

Bridge  x\  Wyman,  14  Mass.  190,  195;  3  Boatwright  v.  Stewart,  37  Ark. 

Groat  V.    Gillispie,    25   Wend.    383;  614:  Patton  v.  Garrett,  id.  605;  Dent 

MoresitvSwift,  15  Nev.  215;  Pinsou  v.    Smith,    53    la.    262;    Straub    v. 

V.   Kirsh,   46  Tex.    26;    Trawick  v.  Wootcn,   45   Ark,    112;    Frankel   v. 

Martin,  79  id,   460.     But   if  attach-  Stern,   44   Cal.  168;  Leah  v.  Green- 

ment  of  land  prevents  its  sale,  there  wood,  21  Ala,  491 ;  Ellis  v.  Allen,  80 

may  be  damage.    Wetsell  u.  Tillman,  id.  515;  Fleming  v.  Bailey,  44  Miss. 

3  Tex.  Civ.  App.  559.  132;  Foster  v.  Sweeney,  14  Serg,  & 

2  Andrews  17.  Glenville  Woolen  Co,,  R.  387;  Wallace  t\  Finberg,  46  Tex, 
50  N.  Y,  282;  Wliite  v.  Wiley,  17  35;  Willis  v.  Lowry,  66  id.  540; 
Ala,  167;  Boatwright  v.  Stewart,  37  Churchill  v.  Abraham,  22  111.  455; 
Ark,  614;  Hughes  v.  Brooks,  36  Tex.  Carpenter  v.  Stevenson,  6  Bush,  259; 
379;  Dunning  v.  Humphreys,  24  Veiths  v.  Hagge,  8  la,  163;  Reidhar 
Wend,  31;  Alexander  v.  Jacoby,  23  v.  Berger,  8  B.  Mon.  160;  Petit  v. 
Ohio  St,  358;  Pettit  v.  Owen,  8  B.  Mercer,  id.  51;  Dunning  v.  Hum- 
Mon.  51 ;  Burgen  v.  Shaver,  14  id,  phrey,  24  Wend,  81 ;  Ranlett  v.  Con- 
500;    Johnson  v.  Farmers'   Bank,  4  stance,    15   La,  Ann.  423;  Frank  r. 


§§  1007,  1008.]  SUIT    ON    ATTACHMENT    BOND.  681 

TV.  Suit  ox  the  Attachment  Bond. 

§  1007.  Avei'ments. —  The  complaint,  in  a  suit  for  damages 
for  wrongful  attachment,  should  contain  averments  of  the 
wrongs  suffered.'  It  is  needless  to  allege  that  the  attaching 
creditor  seized  too  much  without  the  further  allegation  that 
the  complainant  was  injured  thereb}'^,-  and  a  statement  of  the 
amount  of  the  injur}^^  not  exceeding  the  sum  named  in  the 
bond.  But  if  the  verdict  for  damages  is  for  more  than  that, 
the  plaintiff  may  remit  the  excess.* 

If  the  plaintiff  fails  to  allege  that  the  attachment  was 
wrongful,  in  a  suit  for  damages,  the  petition  will  hold  when 
an  answer  is  filed  and  no  objection  has  been  made.^ 

On  the  dissolution  of  a  provisional  seizure,  for  informality, 
the  plaintiff  owes  actual  damage.^ 

Suit  lies  on  the  attachment  bond  when  an  appeal  by  the 
plaintiff  froni/a  judgment  of  dismissal  has  not  been  sustained.'^ 

In  a  suit  on  a  garnishment  bond,  instruction  to  the  jury, 
that  a  nonsuit  was  not  a  breach  of  the  bond,  was  misleading 
if  not  erroneous.^  An  instruction,  that  the  jury  had  no  right 
to  consider  what  took  place  in  the  garnishment  suit,  was  in- 
correct as  a  legal  proposition.^ 

§  1008.  Declaration  on  the  bond  should  show  the  grounds 
of  the  dissolution  of  the  attachment  and  violations  of  the 

Chaflfe,  34  id.  1203;  Cox  v.  Robin-  the  damages  have  not  been  paid  for. 

son,  2  Rob.  (La.)  313;  Offutt  v.  Ed-  Uhrig  v.  Sinex,  32  Ind.  493:  Michael 

wards,  9  id.  90;  Horn  v.  Bayard,  11  v.    Thomas,    27   id.    5U1 ;    Pinney  t\ 

id.  259;  McReady  v.  Rogers,  1  Neb.  Hershfield,  1  Mont.  367;  Horner  r. 

124;  Williams   v.  Hunter,  3  Hawks  Harrison,  37  la.  378. 

(N.  C),  545 ;  Whitney  v.  Brownwell,  -'  O'Neal  v.  Bank,  67  Tex.  36. 

71   la.    257;  Campbell  v.  Chamber-  3  Q^affe  y.  Mackenzie,  43  La.  Ann. 

lain,  10  id.  337;  Abbott  r.  Whipple,  1062.     See   Marx    v.    Lienkauff,    93 

4    Greene    (la.),  320;    Lawrence    v.  Ala.  453. 

Hagerman,  56  111.  68 ;  Clark  v.  Brott,  ^  Union  Mercantile  Co.  v.  Chandler 

71  Mo.  473;  State  v.  Springer,  45  Mo.  (la.),  57  N.  W.  59o. 

App.    252;    Curtis   v.  Ward,  20   Ct.  5  Drake   v.   Sworts   (Oreg.),  33   P. 

204;  Dodson  v.  Cooper,  37  Kan.  346;  563;  Olds  v.  Cary.  13  Oreg.  362. 

Doolittle  V.  McCullough,  7  Ohio  St.  ^  Hollingsworth     v.    Atkins    (La. 

299;   Pierce  v.  Benjamin,  14   Pick.  Ann.),    15     So.    77;    Fleetwood    r. 

356;  Brown  v.  Carroll,  16  R.  L  604.  Dwight,  8  La.  Ann.  482. 

1  Coulson    V.    Bank,  54  Fed.  855;  'State   v.   Gage,  52  Mo.  App.  464. 

Harris   v.  Finberg,  43  Tex.  79 ;  Mc-  §  Alabama  Land  Co.  v.  Reed  (.Ala.), 

Cart  V.  Maddox,  68  id.  456;  Flanagan  10  So.  238. 

V.  Gilclirist,  8   Ala.  620 ;  Bradley  v.  9  Id. 
Borin  (Kan.),  36  P.  977.     And  that 


682  DAMAGES    FOR   WKONGFUL    ATTACHMENT.  [§   1009. 

conditions  of  the  boncl.^  If  there  are  two  or  more  joint  obli- 
gees, thej  must  join  as  necessary  parties  to  an  action  on  the 
bond  for  its  full  amount."  They  should  describe  the  property 
attached  ^  when  that  is  necessary  to  the  proper  presentation 
of  the  case.  The  suit  should  be  against  both  principal  and 
surety,  though  the  first  may  have  not  signed  the  bond.*  If 
all  the  obligors  are  not  sued  together,  and  one  surety  pa^^s 
the  judgment,  he  may  recover  of  a  co-surety  the  part  of  the 
obligation  which  the  latter  should  bear.^  The  liabilities  of 
the  sureties  are  limited  to  the  bond,  while  that  of  the  princi- 
pal is  not.*^  It  must  be  averred,  in  the  declaration  against 
them,  that  they  signed  and  executed  the  bond.^  It  has  been 
held  that  demand  upon  the  principal  need  not  precede  the  in- 
stitution of  the  suit  against  the  sureties;^  but  this  is  not  a 
universal  rule. 

The  sureties  on  the  attachment  bond  have  been  held  not 
liable  to  exemplary  damages  because  their  principal  sued  out 
his  writ  maliciously.^ 

§  1009.  Measure  of  damages. —  The  measure  of  damages, 
"when  the  attachment  was  not  malicious  —  onh^  actual  dam- 
ages being  recoverable  —  is  the  difference  in  value  of  the  at- 
tached property  when  seized  and  when  restored,  and  also  the 
loss  of  its  use  meanwhile.^''     Or,  if  the  property  has  been  sold, 

1  Steen  v.  Eoss,  22  Fla.  480.  »  Seattle  Crockery  Co.  v.  Healey, 

2King  v.  Kehoe  (la.),  58   N.    W.  supra.    In  this  case,  held  that  Wash. 

1071.  Code  Pi-oc,    §  756,   is  inapi3licable 

3  Schneider  v.  Ferguson,  77  Tex.  when  the  principals  of  attachment 

572.  bonds  are   non-residents.     See  Phil- 

4Hoskins  v.  White  (Mont.),  32  P.  lips  v.  Riley,  27  Mo.  386;  Couklin  v. 

163;  Mcintosh    v.    Hurst,    6    Mont.  Conklin,  54  Ind.  289. 

287 ;  Pierso  u  Miles,  5  id.  549;   Jen-  9  Elder  v.    Cutner,    97    Cal.    490; 

nings  t\  Joiner,  1  Colo.  645.  Cal.    Civ.    Code,    §   3300;   Miller    v. 

5  Lebeaume  v.  Sweeney,  17  Mo.  Stewart,  9  Wheat.  702;  Roe  v. 
153.  Thomas,  19  Mo.  613. 

6  Half  V.  Curtis,  68  Tex.  640 ;  Daw-  lo  Coulson  v.  Bank,  54  Fed.  855 ;  Gil- 
son  V.  Baum,  3  Wash.  464.  mour  v.  Heinze,  85  Tex.  76;  Bates  v. 

7  Seattle  Crockery  Co.  v.  Haley,  6  Clark,  95  U.  S.  204 ;  Wallace  v.  Fin- 
Wash.  302;  Pefleyu.  Johnson  (Neb.),  berg,  46   Tex.  35;  3  Suth.  on   Dam. 

'46  N.  W.  710;  Lambert  v.  Haskell,  529;  Allen  v.   Fox,    51   N.    Y.    562; 

80    Cal.    611;   Clement    v.    Hughes  Morey  v.  Hoyt,  62  Ct.  543 ;  Ruthven 

(Ky.),  17  S.  W.   285.     Compare  Mc-  v.  Beckwith,   84  la.   715;  Baines  v. 

Lellan   Dry   Dock   Co.    v.    Farmers'  Jamison  (Tex.  Civ.  App.),  27  S.  W. 

Alliance  (La.),  9  So.  630.  182. 


§  1001).]  SUIT   ON    ATTACHMENT   BOND.  683 

the  measure  is  the  market  value  when  seized,  with  interest 
added.^  The  attaching  creditor,  as  defendant  in  a  damage 
suit  against  him,  was  not  permitted  to  prove  that  the  debtor 
would  probably  have  sold  the  attached  property  for  less  than 
its  value  at  the  date  of  restoration.^  Its  estimate  in  an  action 
of  trover  four  months  before  the  attachment  is  not  admissible 
to  prove  the  value  at  the  time  of  the  levy.^  But  the  sheriff's 
inventory  and  estimate  at  the  time  of  the  levy  may  be  re- 
ceived to  prove  it.** 

Before  the  defendant  in  atto.chment  can  have  the  proceeds 
of  sale,  and  the  difference  between  that  sum  and  the  market 
value,  as  his  damages,  the  amount  of  prior  liens  must  be  de- 
ducted.^ 

If  the  attached  property  has  been  sold  and  the  defendant 
has  received  the  price,  his  claim  for  damages  is  lessened  to  the 
extent  of  the  sum  received.^  But  the  price  is  not  conclusive 
as  to  the  value.^ 

The  use  of  property  during  its  detention  by  attachment  is 
to  be  estimated  when  third  persons  claim  damages,  after  res- 
toration.^ The  rule  of  actual  damages  is  the  same  whether 
the  suit  be  on  the  bond  or  on  the  facts,  when  the  statute 
allows  action  on  either.^  The  remedy  is  usually  by  suit  on 
the  bond  when  there  has  been  no  malice.^"  The  claim  must 
not  be  divided  and  two  suits  brought." 

It  is  held  in  Texas  that  the  claimant  of  chattels,  attached 
as  the  goods  of  another,  waives  his  right  to  damages  for 
wrongful  attachment  by  resorting  to  his  statutory  remedy  to 
try  right  of  property.^' 

1  Mayer  v.  Duke,  73  Tex.  445 ;  5  Union  Mercantile  Co.  v.  Chandler 
AVillis  V.  Lowry,  66  id.  540;  Tucker    (la.).  57  N.  W.  595. 

V.   Hamlin,   60    id.    171 ;   Cleveland        6  Mayer  v.  Duke,  72  Tex.  445.    See 

V.  Tufts  (Tex.),  7  S.  W.  72;  Wool-  First  Nat.  Bank  v.  Houts,  85  id.  69. 
nerr.  Spalding,  65  Miss.  204;   State        ^Trentman  v.  Wiley,  85  Ind.  33. 

V.  Crowder,  40  ]\Io.  App.  536.  See  Phillips  v.  Harvey,  50  Miss.  489. 

2  Estes  V.  Chesney,  54  Ark.  463.  « Turner  v.  Younker,  76  la.  258. 
3Troubee  v.  Wheeler,  53  Ct.  458.  »  Renkert  i'.  Elliott,  11  Lea,  235. 
•*Rosvvald  V.  Hobbie.   85  Ala.   73.  lo  Franz  v.  Hanford  (la.^,  54  N.  W. 

Fuither  as  to  the  evidence  of  value,  474:  Tallant  v.  Gas  Light  Co.,  36  la. 

to  show  damage,  Lathers  v.  Wyman,  262. 

76  Wis.  616 ;  Bunting  v.  Salz,  84  Cal.  n  Hall  v.  Forman,  82  Ky.  505. 

168;   Deere  v.    Bagley,    80  la.    197.  12  Lera  r.  Frieberg  (Tex.  Civ.  App.), 

Sc<i  Braunsdorf  r.  Fillner,  76  Wis.  1;  22  S.  W.  236;  Howeth  v.   Mills,  19 

State  V.  McKeon,  25  Mo.  App.  667.  Tex.  295.     See,  indicating  the  same 


684  DAMAGES    FOR    WKONGFUL    ATTACHMENT.  [§  1010. 

§  1010.  Loss  of  time,  credit,  etc. —  "Whether  loss  of  time  and 
business  may  be  computed  in  recl^oning  the  damages  incurred 
by  a  wrongful  attorchment  depends  upon  the  question  whether 
such  injury  is  direct  or  remote.  A  merchant  would  be  seri- 
ously injured  by  the  seizure  of  his  stock  and  the  closing  of  his 
store  for  weeks  or  months,  though  the  goods  themselves  should 
not  be  damaged  or  deteriorated  in  value  by  a  depreciation 
of  the  price  while  in  the  custody  of  the  officer.  In  such  case 
it  seems  indisputable  that  damages  would  be  recoverable  under 
an  attachment  bond  as  ordinarily  written,  especially  if  he  has 
lost  the  proper  season  for  the  sale  of  his  goods  ;^  but  merely 
speculative  allegations  of  the  loss  of  profits  from  such  cause 
are  not  permissible  assignments  of  the  breach  of  such  bond: 
they  are  deemed  too  uncertain  and  reinote.^  Loss  on  a  con- 
tract was  recoofnized  as  an  element  of  damage  when  a  rail- 
road  contractor's  teams  and  carts  had  been  attached  and  he 
was  thus  prevented  from  performing  his  contract.* 

Loss  of  credit  and  prospective  profits  may  be  shown  in  a 
suit  for  damages  by  malicious  attachment.*  Loss  of  credit, 
and  the  motives  of  the  plaintiff  in  bringing  his  action,  were 
allowed  to  be  proven.^  Loss  of  interest  is  recoverable  where 
a  fund  has  been  attached  and  detained  so  as  to  cause  such  loss.** 

rule:    Moore   v.    Gammel,    13    Tex.  Heath  v.  Lent,  1  Cal.  410;  Ah  Thaie 

120;    Vickery   v.  Ward,    2  id.    212;  u  Quan,  3  id.  216;  McDonald  i\  Felt, 

Lang  V.  Dougherty,  74  id.  228.     See  49  id.  354 ;  Cal.  Civil  Code,  §  3300. 
Tex.  Rev.  Stat.,  art.  4846.  SMundy  v.   Andrews  (W.  Va.),  19 

1  Knapp  V.  Barnard,  78  la.  347.  S.  E.  385. 

2  Wilson  V.  Manufacturing  Co.,  88  *  Kauffman  v.  Armstrong,  74  Tex. 
N.  C.  5;  Marqueze  v.  Southeimer,  312;  Lewis  u.  Taylor  (Tex.),  24  S.  W. 
59  Minn.  430;  State  v.  Thomas,  19  92. 

Mo.   613;  Craddock  -y.  Goodwin,  54  5  Kennedy  v.   Meacham,    18   Fed. 

Tex.  578;  Tynberg  v.   Cohen,  76  id.  312.    Co))?pare  Mitchell  v.  Harcourt, 

409;   Kerbs   v.  Provine,  78  id.   353;  62  la.  349.     See  Flourney  r.  Lyon,  70 

Higgins   V.    Mansfield,  62  Ala.  267;  Ala.    308.      The   case   of    Kennedy, 

Floyd  V.  Hamilton,  33  id.  235 ;  Pol-  above,  was  on  a  statute  giving  the 

lock  t\  Gantt,  69  id.  373 ;  44  Am.  Rep.  defendant  a  right  to  damages  on  fail- 

519;  Donnell  v.  Jones,  13  Ala.  490;  ure  of  attachment.     Article  4840  of 

Dall  V.  Cooper,    9   B.    J.    Lee,    574;  the  Revised  Statutes  of  Texas  fixes  a 

Myers  v.  Farrell,  47  Miss.  281;  Hal-  certain  2>erceuf age  as  damages.     Du- 

locky.  Belcher,  24  Barb.  199 ;  Camp-  pree  v.  Woodruff  (Tex.),    19   S.  W. 

bell    V.    Chamberlain,    10    la.    337;  469.    Loss  of  credit :  Mayer  v.  Fagan, 

Lowenstein   v.    Monroe,    55   id.    82;  34  Neb.  184. 

Oberne  v.    Gaylord,   13  Bradw.  30;  *>  Northampton  Bank  v.  Wylie,  52 

Braunsdorf  v.   Fellner,    76  Wis.   1;  Hun,  146;  Jacobus  u.  Bank,  35  Fed. 


§§  1011,   101 2.J  SUIT    ON    ATTACUMEXT    BOND.  685 

Nominal  damages  were  awarded  to  a  shareholder  for  the 
provisional  seizure  of  property  of  the  corporation  in  which  his 
stock  was  held.^  Depreciation  of  corporation  stock,  Avhile 
held  under  attachment,  was  not  allowed  in  the  estimate  of 
damage,  because  the  owner  had  made  no  effort  to  have  it  sold 
daring  that  time.- 

§  1011.  Measure  ivhen  land  is  attached. —  On  proof  that  the 
gale  of  land  was  prevented  by  attachment  and  that  the  land 
deteriorated  in  price,  the  usual  rule  as  to  deterioration  as  the 
measure  of  damages  was  applied.^  The  difference  between 
land  and  chattels  is  that  the  attachment  of  the  former,  being 
without  disturbance  of  the  defendant's  use  of  it,  is  not  pre- 
sumed to  cause  him-  damage.  Damage  must  be  proved  when 
land  is  attached;  it  is  not  presumed.'* 

The  actual  loss  to  the  attachment  defendant  by  the  seizure 
and  detention  of  his  property — not  the  rental  in  open  mar- 
ket —  IS  the  measure  of  damage  he  sustains.^ 

Only  nominal  damages  are  recoverable  for  the  wrongful 
attachment  of  land  when  no  injury  is  done,  as  the  possession 
is  not  disturbed.^ 

§  1012.  JEi'idence. —  Evidence  of  the  publicity  given  to  the 
proceedings  is  admissible  in  a  suit  for  damages  for  wrongful 
attachment.^     It  may  be  shown  that  the  attachment  com- 

395 ;  State  v.  Beldsmeier,  65  Mo.  226.  App.  559.     See  Barker  v.  Abbott,  2 

Interest   may   be   included   in  esti-  id.  147. 

mating   damages,  tliough   probable        *  Trawick  v.  Martin,  79  Tex.  460. 
profits  in  due  course  of  merchandis-        5  Foster  v.  Sweeny,  14  S.  &  R.  386 ; 

ing  would  not  be.     Blass  v.  Lee,  55  Hurd  v.  Barnhart,  53  Cal.  97 ;  Eeid- 

Ark.  329:  Blanc  v.  Tharp,  83  la.  665.  her  v.  Berger,  8  B.  Mon.  160;  Wie- 

Injury  to  goods  ground  for  damages,  land   v.    Oberne,    20  111.    App.   118; 

tliough  the  attachment  was  lawful.  Fleming    i\    Bailey,    44    Miss.    132; 

Lobenstein    v.    Hymson,    90    Tenn.  Meshke  v.  Van  Doren,  16  Wis.  323. 
606.  6Girard  v.  Moore  (Tex.  Civ.  App.), 

1  Scott  V.  Moll,  45  La.  Ann.  — .  24  S.  W.  652 ;  Imperial  Roller  Milling 

2  Sargent  v.  Fuller,  132  Pa.  St.  127.  Co.  v.  First  N.  Bank  (Tex.  Civ.  App.), 
The  attachment  of  stock  in  third  27  S.  W.  49. 

hands  by  garnishment,   which  pre-  '  Brand   v.    Hinchman,    68    Mich, 

vented   its   owner   from    borrowing  590.    The  motives  of  the  attachment 

money   on   it,    was   held   to    afford  defendant  in  leaving  the  state  were 

ground  for  nothing  more  than  nom-  not  allowed  to  be  proved  in  his  suit 

jnal  damages.    Girard  v.  Moore  (Tex.  for  damages  for  wrongful   attach- 

App.),  24  S.  W.  652,  and  26  id.  495.  ment  on  the  charge  of  absconding. 

3  Wetsell  V.  Tillman,   3  Tex.   Civ.  Hamer  v.  First  N.  Bank  (Utah),  33 

P.  941. 


686  DAMAGES    FOR    WRONGFUL    ATTACHMENT.       [§§  1013,   1014. 

plained  of  was  followed  by  other  attachments  against  the 
complainant's  property;  but  whether  they  followed  as  a  con- 
sequence is  a  question  for  the  jury.^  A  newspaper  article, 
not  caused  by  the  attaching  creditor  to  damage  the  defend- 
ant, is  not  admissible  against  him  when  he  is  sued  for  dam- 
ages on  account  of  the  attachment.-  An  affidavit  for  a  writ 
of  replevin  is  not  admissible  to  prove  that  the  purchaser 
(plaintiff  in  the  damage  suit)  had  lost  nothing  by  the  conver- 
sion of  some  of  the  goods.^ 

§  1013.  The  burden  of  proof  to  show  the  falsity  of  the  at- 
taching creditor's  aflBdavit  is  on  the  claimant  of  damages.* 
The  attachment  is  proven  to  be  wrongful  when  shown  to  be 
without  statutory  grounds;^  and  the  complainant  should  aver 
that  it  was  unauthorized,  in  his  petition  for  damages.^  The 
particular  ground  on  which  the  writ  was  issued  and  the  levy 
made  must  have  been  unauthorized  and  so  alleged  by  the 
claimant  of  damages.  There  may  have  been  good  grounds 
on  which  the  property  might  have  been  lawfully  attached,  but 
that  will  not  avail  the  wrong-doer  when  sued  for  damages."^ 
All  the  grounds  alleged  in  the  affidavit  may  have  been  au- 
thorized and  all  true;  yet,  if  the  attachmg  creditor  had  no 
cause  of  action;  if  no  debt  was  owing  to  him  by  the  defend- 
ant, he  incurred  liability  to  actual  damages  by  attaching,  when 
injurj'  is  proved  to  have  resulted.^ 

When  only  nominal  damages  are  recoverable,  actual  injury 
need  not  be  proved.^ 

§  1014.  In  a  suit  on  the  bond  the  sheriff's  return  proves  w^hat 
was  seized,  but  it  may  be  proved  otherwise  that  he  seized  too 
much  or  more  than  he  has  returned.^" 

1  Grimes  v.   Bowerman,  93  Mich.  7  Lobenstein  v.  Hymson,  90  Tenn. 

258.  606 ;  Vurpillat  v.  Zehner,  2  Ind.  App. 

2Tynberg    v.    Colien     (Tex.     Civ.  397. 

App.),  24  S.  W.  314.  8  McLane  v.  McTighe,  87  Ala.  411 ; 

3  Walker  v.  Collins,  59  Fed.  70.  City  National  Bank  v.  Jeffries,  73  id. 

4  Calhoun  t'.  Hannon,  87  Ala.  277.  183;    Durr  v.   Jackson,   59  id.   203; 

5  Id. ;    Boxby   v.   Segrest,  85  Ala.  Lockhart  v.  Woods,  38  id.  63 ;  Mont- 
183;  City  National  Bank  v.  Jeffries,  gomery  Co.  v.  Thomas,  20  id.  473. 
73  id.  183;  Marx  v.   Strauss,   93  id.  ^  See  Smith  v.  Johnson,    95   Ala. 
453 ;  Farrar  v.   Talley,  68  Tex.   349 ;  482. 

Mayer  v.  Walker,  82  id.  222.  lo  Jefferson  Bank  v.  Eborn,  84  Ala. 

«  Sprague  v.  Parsons,  13  Daly,  553.     529 ;  Hensley  v.  Rose,  76  id.  873. 
See  MacFarland  v.  Lehman,  38  La. 
Ann.  351. 


§  lUl5.]  SUIT  ON  ATTACHMENT  BOND.  6S7 

A  suit  on  the  bond  cannot  be  defended  on  evidence  that  the 
attachment  defendant  was  insolvent,^  or  that  good  grounds 
existed  though  not  alleged;^  or  that  the  affidavit  to  belief 
was  sincere;  ^  or  that  the  attached  propert}'^  did  not  belong  to 
the  defendant.'*  But,  by  way  of  mitigating  damages,  or  to 
meet  the  charge  of  notice,  the  attaching  creditor  has  been  al- 
lowed to  prove  that  he  knew  of  an  attachment  that  had  been 
sued  out  against  the  debtor  by  another,  creditor  prior  to  his 
own  action.'^ 

On  a  question  whether  the  goods  have  brought  a  fair  price 
at  an  attachment  sale,  clerks  and  auctioneers  have  been  al- 
lowed to  testify  as  to  the  value.® 

When  the  attaching  creditor  is  sued  in  trespass  for  the 
fraudulent  sale  of  goods,  the  indemnity  bond  given  by  him 
to  the  sheriff  to  induce  the  sale  may  be  given  in  evidence 
against  him."  He  cannot  shift  the  responsibility  to  the 
shoulders  of  other  trespassers.^ 

^  1015.  Who  may  sue. —  To  have  the  right  to  sue  for  dam- 
ages the  party  plaintiff  must  have  been  damaged  in  some  way 
in  his  property  interests  by  the  attachment  of  which  he  com- 
plains. Whether  he  was  a  party  to  the  attachment  suit  or 
not,  he  must  have  been  pecuniarily  injured  before  he  can  ask 
to  have  his  injuries  repaired.  Questions  of  right  to  recover 
often  turn  upon  the  complainant's  title  to  property  or  its  pos- 
session.^ 

A  mortgagee  dispossessed  can  recover  only  nominal  dam- 
ages when  the  property  is  not  sold.'**  A  mortgagor  may  sue 
for  damages  for  the  wrongful  attachment  of  his  mortgaged 

1  Kaufman  v.  Armstrong,  74  Tex.  ^See  Baldwin  r.  Walker,  94  Ala. 
65.  But  his  insolvency  may  be  514;  Hanssler  r.  Bank,  23  Mo.  App. 
shown  in  mitigation  of  damages.  282;  Taylor  v.  Hines,  31  id.  622; 
Mayfield  v.  Cotton,  21  Tex.  1.  Porter  v.  Knight,  63  la.  365. 

2  Blum  V.  Strong,  71  Tex.  321;  lo  Schwartz  u.  Davis  (la.),  57  N.  W, 
Woods  V.  Huffman,  64  id.  98.  849 ;  Williams  v.  Brown,  76  la.  643. 

3  Kennedy  v.  Meacham,  18  Fed.  The  act  which  requires  an  attaching 
312;  Bear  v.  Marx,  63  Tex.  298.  creditor  to  pay  the  mortgage  or  de- 

•*  Brandon  v.  Allen,  28  La.  Ann.  60.  posit  the  amount  of  it  with  the  clerk 

5  Goldsmith  v.  Picard,  27  Ala.  142;  of  the  court  is  to  protect  the  mort- 
Yarborough  v.  Hudson,  19  id.  653.  gagee    only.     Wilson    v.   Felthouse 

6  Marx  V.  Strauss,  93  Ala.  453.  (la.),  57  N.  W.  878. 

7  Skipper  r.  Reeves,  93  Ala.  332. 

8  French  v.  Duncan,  47  111.  App.  113. 


688  DAMAGES    FOR    WRONGFUL    ATTACHMENT.       [§§  1016,  1017. 


property,  though  it  be  subsequently  conve3^ed  to  the  mort- 
gagee.^ 

§  1016.  Consent  to  attachment. —  If  the  defendant  consents 
to  having  his  property  attached  he  cannot  complain  of  it 
afterwards.  The  consent  of  a  member  of  a  partnership  has, 
been  taken  as  that  of  his  firm  when  not  collusively  given.^ 
But  if  one  partner  was  in  collusion  with  a  creditor  suing  the 
partnership,  another  partner  may  sue  for  damages  especially 
appertaining  to  himself.^  If  there  was  no  collusion,  one  mem- 
ber of  a  firm  may  sue  in  behalf  of  it,  though  another  member 
refuses  to  join  in  the  suit,  it  is  said."* 

§  1017.  Wrong  grounds. —  The  plaintiflf  obligates  himself  to 
pay,  not  simpl\^  in  case  damages  result  because  of  his  false 
affidavit  as  to  the  debt  but  also  as  to  the  grounds  for  the 
extraordinary  remedy;  and  therefore,  though  the  debt  be  due 
and  owing  as  alleged,  he  is  liable  if  the  writ  was  wrongfully 
issued  because  of  the  false  statement  as  to  the  defendant's 
non-residence,  absconding,  or  fraudulent  disposition  of  prop- 
ert3^^  His  animus  cannot  be  considered  in  his  favor  when  the 
obligation  is  positive;  he  may  have  sworn  in  good  faith  yet 
been  mistaken  as  to  the  circumstances,  both  with  regard  to 
the  debt  and  the  ground,  or  either,  and  yet  render  himself 
liable  by  his  bond  to  damages.^  But  if  swearing  to  his  belief 
is  all  that  is  required  for  the  issue  of  the  writ,  and  the  bond 
is  to  pay  damages  caused  by  a  wrongful  attachment,  he  is  not 

iLoomis  V.  Stuart  (Tex.  Civ.  App.),  C.)  495;  Drummond  v.  Stuart,  8  la. 

24  S.  AV.  1078.  341;  Kirksey   v.  Jones,  7  Ala.  622; 

2  Barker  v.  Abbott,  2  Tex.  Civ.  Watson  v.  Kennedy,  8  La.  Ann.  280, 
App.  147;  Goodbarv.  Bank,  78  Tex.  6  Hayden  v.  Sample,  10  Mo.  215; 
461;  Martin  v.  Perrill,  77  id.  199;  Churchill  v.  Abraham,  22  111.  455; 
Baines  v.  Ullman,  71  id.  539;  Tucker  r.  Adams,  52  Ala.  254;  Met- 
Schneider  v.  Sansom,  62  id.  201;  calf  v.  Young,  43  id.  643;  Lockhart 
Blum  V.  Scram,  58  id.  524.  But  not  v.  Woods,  38  id.  681 ;  Alexander  v. 
if  there  was  collusion.  Shoe  Co.  r.  Hutchinson,  9  id.  825;  Gaddis  v. 
Harris,  82  Tex.  273;  Bateman  v.  Lord,  10  la.  141;  Mitchell  v.  Mat- 
Ramsey,  74  id.  589.  tingly,  1  Met.  (Ky.)  237.     But  in  a 

3  Grimes  v.  Bowerman,  92  Mich,  suit  for  malicious  attachment  the 
258.  animus  becomes  important;  intent 

^  Barker  v.  Abbott,  supra.  to  injure  must  be  proved  to  recover 

5  Foster  v.  Sweeny,  14  Serg.  &  R.  exemplary  damages.  Nordhaus  v. 
387;  Sanders  v.  Hughes,  2  Brev.  (S.     Paterson,  54  la.  68. 


§§  lOlS,  1019.]       EXEMPLARY  DAMAGES.  689 

always  held  obligated  by  the  bond  because  the  facts  proved 
to  be  different  from  what  he  honestly  believed,  if  he  had  good 
reason  to  believe  them.^ 

Y.  Exemplary  Damages. 

§  1018.  Probal)le  cause. —  Attaching  wantonly  without  prob- 
able cause  is  legally  deemed  malicious,  and  a  common-law 
action  for  damages  will  lie.  Such  action  is  not  limited  by 
the  sum  nominated  in  the  attachment  bond,  but  the  injured 
defendant  may  claim,  and  the  jury  may  award,  such  exem- 
plary damages  as  may  be  proper  to  remunerate  him  for 
injury  to  himself  and  his  property  and  punish  the  attaching 
creditor  for  his  wanton  abuse  of  the  extraordinary  remedy  to 
■which  he  has  resorted  for  the  recovery  of  his  ordinarj'^  debt. 
Several  creditors,  plaintiffs  respectively  in  several  consolidated 
attachment  cases,  are  liable  together  for  damages  for  the 
tortious  conversion  of  the  defendant's  property.^ 

The  plaintiff  must  aver  that  the  attachment  suit  was  exe- 
cuted;^ that  the  attaching  creditor  was  responsible  for  the 
execution;*  that  the  ground  alleged  in  his  affidavit  was  false;* 
and  that  he  had  no  probable  cause  for  his  action.^ 

Probable  cause  does  not  render  the  creditor  free  from  lia- 
bility for  wrongful  attachment  as  to  actual  damages,  though 
it  does  as  to  exemplary.^  . 

§  1019.  !Malice  and  want  of  probable  cause  must  unite  to 
■warrant  exemplary  damages.^  If  the  former  is  wanting,  such 
damages  should  not  be  awarded;^  but  it  has  been  inferred 

1  Burkhart  v.  Jennings,  2  W.  Va.  5  xiller  r.  Shearer,  20  Ala.  527. 
242;  Vorse  v.    Phillips,    37  la.  428;  eHalliday  r.  Sterling,  62  Mo.  321; 
Dent  V.  Smith,  53  id.  262  {see  Bur-  Young  v.  Gregorie,  3  Call,  446 ;  Mc- 
ton  V.  Knapp,  14  id.  196);  Winches-  CuUough  v.  Grishobber,  4  W.  &  S. 
ter  V.  Cox,  4  G.  Greene,  121 ;  Steven-  201. 

son  V.  Robbins,  5  Mo.  18.    Contra:  '  Yarborough  v.  Weaver  (Tex.  Civ. 

Alexander    v.    Hutchinson,  9    Ala.  App.),   25  S.  W.  468;    Carothers  v. 

825;  Temple  v.  Cochran,  13  Mo.  116;  Mcllhenny,  63  Tex.  140;  Culbertson 

Dideru.  Courtney,  7  id.  500;   Che-  r.  Cabeen,  29  id.  253. 

nault  V.  Chapron,  5  id.  438.  **  Grant  v.  Reinhart,  33  Mo.  App. 

2  Conrad  v.  Fisher,  37  Mo.  App.  74;  Joy  v.  Barnhartt,  10  Mo.  151; 
352,  Mayer  v.  Duke,  72  Tex.  445;  Benson 

3Mott  V.  Smith,   2  Cr.  (C.  C.)  33.  v.  McCoy.  36  Ala.  710;  McKellar  r. 

See  Ryall  v.  Marx,  50  Ala.  31.  Coucli,  34  id.  336. 

4  Marshall  v.  Betner,  17   Ala.  833.  9  Turner    r.    Hardin,    80  la.    691; 
44 


690  DAMAGES    FOK    WEOXGFUL    ATTACHMENT.  [§  1020. 

when  there  was  no  probable  canse.^  Circumstances  attending 
the  attachment  proceedings  may  aid  in  determining  both 
requisites*  If  the  writ  was  sued  out  in  consequence  of  the 
debtor's  threats  and  false  statements,  that  is  a  circumstance 
tending  to  show  probable  cause  and  good  motive;-  but  infer- 
ence would  be  against  a  creditor  under  man\'  circumstances,* 
to  be  weighed  by  the  jury.*  The  debtor's  offer  to  arbitrate 
or  compromise  may  be  proved  as  a  circumstance  tending  to 
show  want  of  probable  cause  on  the  part  of  the  creditor.'^ 

In  a  suit  for  malicious  attachment,  the  judgment  rendered 
in  the  attachment  suit  for  the  debt  claimed  cannot  be  re- 
investio-ated:^  nor  can  the  attachment  be  assailed  if  it  was 
laid  in  strict  conformity  to  law."  But  it  may  be  shown  to 
have  been  malicious,  and  such  showing  is  necessary  to  sustain 
an  action  on  the  case  at  commoojaw.* 

§  1020.  Malice  inferred  from  circumstances.'- —  Whether 
the  damages  to  be  awarded  are  actual  or  exemplarj'^  depends 
upon  the  question  of  malice;  and  this  is  often  referable  to  the 
circumstances  of  the  case.  If  the  attaching  creditor  acts 
under  legal  advice,  that  is  often  considered  indicative  of  good 
intent  limiting  his  liability  to  actual  damages  when  the  pro- 
ceeding is  found  wrongful.^  This  circumstance  in  his  favor 
is  not  always  conclusive,  however;'*'  for  all  suits  brought  by 
attorne3's  may  be  presumed  to  be  instituted  under  their  ad- 
vice, and  it  would  not  do  to  attribute  good  motives  to  plaintiffs 
by  reason  of  that  fact,  if  there  are  other  circumstances  tend- 
ing to  show  a  malicious  spirit.  Both  client  and  counsel  may 
be  actuated  by  such  spirit  and  both  be  amenable  to  exemplary 

Heidenheimer  v.   Sides,  67  Tex.  32;  ^  Lewis  v.  Taylor  (Tex.),  24  S.  W. 

Schneider  v.   Ferguson,  77  id.  572;  92. 

Conly  V.  Wood  (Tex.),  12  S.  W.  615.  6  jones  v.  Kirksey,  10  Ala.  839. 

1  Parks  V.    Young,    75    Tex.    278 ;  ■*  Rogers  v.  Pitman,  2  Jones,  56. 

Wright  V.  Waddell  (la.),  56  N.  W.  8  Benson  v.  McCoy,  supra. 

650;  Hurlbut  v.  Hardenbrook  (la.),  SMcDanielr.  Gardner,  34La.  Ann. 

52  N.  W.  512.  341 ;    Dickinson  v.   Maynard,  20  id. 

2Grant  r.  Reinhart,  S2(jjra.  66;     Teal  v.    Lyons,    30   La.    Ann., 

3 See  facts  in  cases:  McFadden  r.  Part  I,  1140;    Raver  v.  Webster,  3 

Whitney,   51  N.  J.  L.  391;  Baldwin  la.  502;  Roach  v.  Brannon,  57  Miss. 

V.  Walker,  91  Ala.  428;  Ellis  v.  Bon-  490;  Alexander  v.  Harrison,  38  Mo. 

ner,  80  Tex.  198;  Miles  r.  Butler,  16  258. 

S.  W.  108.  i^'Ravenga  r.  Mackintosh,  2  Barn. 

*  Jones  V.  Fruin,  20  Xeb.  76.  &  Cressw.  693. 


§  1021.]  EXEMPLARY    DAMAGES.  691 

damages.^  The  principal  is  not  to  be  deemed  to  have  been 
malicious  because  his  agent  or  attorney  is  proved  to  have 
been  so.^  But  he  is  not  relieved  from  the  charge  of  malice 
by  showing  that  an  agent  made  the  affidavit.'  The  spirit  by 
which  the  attaching  creditor  was  actuated  in  suing  out  his 
writ  may  be  inferred,  in  a  great  measure,  from  what  is  proved 
as  to  his  honest  belief  of  his  right  of  action  when  he  instituted 
it.  If  he  had  not  only  an  honest  but  a  reasonable  opinion 
that,  under  the  existing  facts  as  he  understood  them,  he  was 
entitled  to  the  relief  which  he  sought,  he  cannot  be  held  to 
have  been  actuated  by  malice,  though  the  attachment  itself 
may  have  been  illegal,  unjustifiable  and  injurious,^  but  other- 
Avise  if  he  knew  his  grounds  to  be  false.'^  Malice  has  been 
held  not  necessarily  inferable  from  want  of  probable  cause.® 
§  1021.  Burden  of  proof. —  The  burden  of  proof  is  on  him 
who  claims  exemplary  damages  to  show  that  the  attachment 
suit  was  instigated  or  instituted  by  the  defendant,  that  it  was 
fully  executed  on  the  complainant's  property,  that  it  was 
without  probable  cause,  that  it  has  been  terminated  without 
judgment  justifying  the  attachment,  and  that  the  complain- 
ant has  been  injured:^  thereupon,  it  devolves  on  the  defend- 

1  Empire  Mills  v.  Lovell,  77  la.  100 ;  v.  Bonner,  80  Tex.  198.  and  Christian 
Wood  V.  Weir,  5  B.  Men.  544.  v.  Seeligson,  63  id.  405.) 

2  Rankin  v.  Bell,  88  Tex.  28.  Com-  5  Byersdorf  v.  Sump,  39  Minn.  495 ; 
pa?"e  Jones  r.  Lamon  (Ga.),  18  S.  E.  Hurlbut  v.  Hardenbrook  (la.),  53 
423.  N.  W.  510;  Willis  v.  McNatt,  75  Tex. 

3  Ala.  Land  Co.  v.  Reed  (Ala.),  10  69. 

So.  238.  6  Willis  v.  McNeill,  57  Tex.  465. 

^Spengler  v.  Davy,  15  Gratt.  381;  "?  Maskell  v.  Barker,  99  Cal.  642; 
Barrett  v.  Spaids,  70  111.  408 ;  Alex-  Wilcox  v,  McKenzie,  75  Ga.  73 :  Col- 
ander V.  Harrison,  38  Mo.  258 ;  Will-  lins  v.  Shannon,  67  Wis.  441 ;  Kauff- 
iams  V.  Hunter,  3  Hawks  (N.  C),  man  v.  Babcock,  67  Tex.  241;  Tyn- 
545;  Smith  u.  Story,  4  Humph.  169;  berg  v.  Cohen,  67  id.  220;  Walker 
Campbell  v.  Hopkins,  87  Ala.  179;  v.  Collins,  50  Fed.  787;  Wood  v. 
Donnell  v.  Jones,  13  id.  490;  White  Weir,  5  B.  Mon.  544;  Pixley  i\  Reed, 
■«/.  VVyley,  17  id.  167 ;  Wood  v.  Bar-  26  Minn.  80 ;  Sloan  v.  McCracken,  7 
ker,  37  id.  60;  McCullough  v.  Grish-  B.  J.  Lea,  626;  Bump  v.  Betts,  19 
bobber,  4  Watts  &  Serg.  201 ;  Nord-  Wend.  421 ;  Dfent  v.  Smith,  53  la. 
liaus  t\  Peterson  Brothers,  54  la.  68;  150;  Feazle  v.  Simpson,  2  111.  30; 
Dent  V.  Smith.  53  id.  262;  Vorse  v.  Walser  v.  Thies,  56  Mo.  89;  O'Grady 
Phillips,  37  id.  428;  Kennedy  v.  v.  Julian,  34  Ala.  88;  Lawrence  v. 
Meacham,  18  Fed.  312;  Leyser  v.  Hagerman,  56  111.  68;  Ives  v.  Bar- 
Field  (N.  M.),  23  P.  173.     (See  Ellis  tholomew,  9  Ct.  309;  Tomlinson  v. 


692  DAMAGES    FOE   WRONGFUL   ATTACHMENT.  [§  1022. 

ant  to  prove  good  motives  by  establishing  facts  tending  to 
that  end,  if  he  would  thus  avoid  the  consequences  of  his 
wrongful  attachment.^ 

In  defending  against  a  suit  for  exemplary  or  vindictive  dam- 
ages, the  defendant  may  prove  that  there  was  debt  due  him, 
if  that  has  not  been  decided  adversely  to  him  in  the  attach- 
ment suit  —  if  he  was  merely  nonsuited  therein ;  he  may  show 
anything  which  will  establish  a  lawful  animus  on  his  part, 
since  malice  is  necessary  to  his  liability.-  The  fact  that  his 
attachment  was  dissolved  does  not  estop  him  from  showing 
that  it  was  not  wrongful.  The  dissolution  is  ov\^'  prima  facie 
evidence  that  the  attachment  was  wrong.* 

§1022.  What  is  maliccf — -"The  malice  necessary  to  be 
shown  ...  is  not  necessarily  revenge  or  other  base  and 
malignant  passion.  Whatever  is  done  wilfully  and  purposely, 
if  it  be  at  the  same  time  wrong  and  unlawful,  and  that  known 
to  the  party,  is  in  legal  contemplation  malicious.  That  which 
is  done  contrary  to  one's  own  conviction  of  duty,  or  with  a 
wilful  disregard  of  the  rights  of  others,  whether  it  be  to  com- 
pass some  unlawful  end,  or  some  lawful  end  by  unlawful 
means,  or  ...  to  do  a  wrong  and  unlawful  act  knowing 
it  to  be  such,  constitutes  legal  malice."^  "Attaching  mali- 
ciously "  is  equivalent  to  "  attaching  wantonly,"  and  was  sus- 
tained in  a  declaration  when  the  statute  employed  the  latter 
phrase.^ 

Warner,   9  Ohio,   103 ;    Williams  v.  -  Lindsay  v.  Larned,  17  Mass.  *190, 

Hunter,  3    Hawks,    515;    Sledge  v.  *197 ;  Bond  n  Ward,  7  id.  *130. 

McLaren,  29  Ga.  64 ;  Wiley  v.  Trai-  3  sioan   v.   Langert,   6  Wash.   26. 

wick,  14  Tex.  662.  See  Dray  Co.  v.  Hoefer,  2  id.  45. 

1  Carey  v.   Gunnison,  51   la.   202;  4  wills  u  Noyes,  12  Pick.  324,328; 

Kirkseyy.  Jones,  7  Ala.   622;  Don-  Stone   v.  Swift.  4  id.  393;  Reed  v. 

nell  V.  Jones,  13  id.  490;  Melton  v.  Samuels,  22  Tex.  114;   McLaughlin 

Troutman,    15    id.    535;    White    v.  r,  Davis,  14  Kan.  168;  United  States 

Wyley,   17   id.   167;  Sackett  v.  Mc-  i\  Ruggles,  5  Mason,  192;  liOoker  v. 

Cord,  33  id.  851;  Wood  v.  Barker,  37  Halcomb,  4  Bingli.  190;  Harman  v. 

id.   60;  Lockhart  v.  Woods,  38  id.  Tappenden,  1   East,  567,  note.     See 

631;  Spengler  v.   Davy,  70  111.  408;  Crofford  v.  Vasser,  95  Ala.  548,  as  to 

Morrison  v.  Crawford,  7   Oreg.  472;  the  necessary  allegations. 

Jacobs  V.  Crum,  62  Tex.  401 ;  Hagen  5  Stadder  v.  Jacobs,  70  Miss.  429. 

V.  Campbell,  78  Wis.  572;  Paxton  v.  Malice  should  be  averred.     Doll  v. 

Moravek,    31    Neb.    305;    Grimes  tJ.  Cooper,  9  Lea,  576. 
Bowerman,  92  Mich.  258. 


§§  1023,  1024.J       EXEMPLARY  DAMAGES.  G93 

§  1023.  Effect  of  judgment. —  l^either  party  can  reopen 
what  was  settled  by  the  attachment  suit.  The  judgment 
therein  is  res  judicata  as  to  them  when  the  proceedings  were 
inter  partes.  The  truth  of  the  attaching  creditor's  affidavit 
cannot  be  questioned  after  it  has  been  traversed  and  sus- 
tained. The  final  judgment  is  conclusive  between  the  par- 
ties as  to  whether  the  attachment  w^as  rightfuU}'  or  wrongfully 
sued  out,  and  therefore  it  cannot  be  collaterally  assailed  by 
either  the  plaintiff  or  the  defendant  in  the  subsequent  damage 
suit.  If  held  rightfully  sued  out  and  prosecuted,  it  is  a  bar 
to  any  action  for  exemplary  damages;  but  if  there  has  been 
judgment  for  the  attachment  debtor,  that  merely  establishes 
that  the  attachment  was  wrongful;  it  leaves  open  the  ques- 
tion whether  it  was  malicious,  and  therefore  suit  will  lie  for 
exemplary  damages.  If  the  attachment  was  absolutely  void, 
it  is  said  that  proof  of  mal-ice  or  want  of  probable  cause  is  not 
necessary  in  a  suit  for  damages.^ 

Judgment  against  the  attaching  creditor,  if  accompanied 
by  a  judicial  entry  made  contradictorily  between  the  parties, 
finding  that  there  was  probable  cause  for  the  creditor's  suing 
out  the  attachment,  will  operate  as  a  perfect  bar  to  a  subse- 
quent action  for  exemplary  damages  wherever  such  practice 
authorizedly  prevails. 

§  1024.  Nonsuit,  discontinuance,  settlement  by  compro- 
mise, or  any  disposition  of  the  attachment  suit  not  expressly 
or  impliedly  by  contract  precluding  the  alleged  debtor  from 
his  action  for  damages,  constitutes  no  bar;  nothing  is  thus 
finall}^  adjudicated,  and  therefore  there  is  nothing  to  be  urged, 
by  reason  of  any  such  disposal  of  the  cause,  as  a  reason  why 
an  injured  debtor  should  not  be  heard. 

It  must  be  noted  that  only  what  is  adjudicated  finally  be- 
tween the  parties  is  a  bar  to  the  action  for  excmplarv  damages : 
hence,  even  a  judgment  in  favor  of  the  attaching  creditor 
would  be  no  bar  to  an  action  against  him  for  libel  committed 
by  written  and  published  charges  against  the  debtor's  char- 
acter and  reputation,  when  such  charges  are  wanton,  unneces- 
sary, and  no  basis  upon  which  the  judgment  sustaining  the 
attachment  is  rendered ;  when  the  court,  in  giving  reasons  for 

1  Spiague  V.  Parsons,  14  Abb.  New  Cases,  320. 


GDi  DAMAGES    FOR    WRONGFUL    ATTACHMENT.       [§§  1025,   1026. 

judgment,  repudiates  such  charges  as  unproved,  and  places 
the  decree  upon  other  grounds.  For  instance,  if  the  attach- 
ing creditor  should  charge  that  his  alleged  debtor  is  gailty  of 
not  onlji'  legal  but  moral  fraud,  and  fail  to  sustain  that  allega- 
tion, but  should  gain  his  cause  simply  on  the  facts  of  indebt- 
edness and  non-residence  of  the  debtor,  the  judgment  would 
be  no  bar  to  a  subsequent  suit  against  him  for  exemplary 
damage  for  such  wanton,  false,  slanderous,  malicious  and 
wholly  unnecessary  assault  upon  character. 

§  1025.  Judf/ment  in  rem. —  When  not  i /iter  partes,  the  judg- 
ment in  the  attachment  suit  may  be  collaterally  attacked  by 
the  owner  of  the  condemned  res,  except  with  reference  to  the 
res  itself.  As,  in  such  suit,  there  can  be  no  personal  judg- 
ment ag-ainst  the  merely  nominal  defendant,  he  is  not  es- 
topped  from  investigating  charges  made  against  himself  when 
they  were  void  of  bearing  against  the  property  attached.  If, 
being  notified  by  publication,  he  failed  to  respond,  and  his  at- 
tached propert\7^  was  condemned  to  pay  his  debt,  upon  proof 
of  the  indebtedness  and  of  his  fraudulent  disposition  of  prop- 
erty, his  absconding  to  avoid  creditors,  or  the  like,  he  cannot 
collaterally  attack  the  judgment ;  for  a  decree  i?i  rem.  is  res 
judicata  as  to  him;  and  it  would  be  so  against  all  the  world 
in  a  proceeding  to  fix  the  status  of  forfeited  property  in  which 
all  are  notified.  But  the  attachment  debtor  is  not  "in  court 
by  his  property,"  and  therefore  the  judgment  is  a  nullity  so 
far  as  it  g-oes  bevond  the  res  of  the  action,  and  all  the  excess 
may  be  collaterally  attacked. 

When  the  judgment  is  against  both  the  debtor  and  his  at- 
tached property,  that  is,  when  both  are  in  court  and  the  de- 
cree is  against  him  with  privilege  upon  the  thing  attached, 
and  when  the  creditor's  allegations  and  prosecution  of  his 
cause  have  been  sustained  by  the  court,  the  decree  is  res  judi- 
cata, and  a  complete  bar  to  any  subsequent  action  either  for 
actual  or  exemplary  damages. 

§  1026.  Injury  j'rom  (jaruisliment. —  If  the  damages  were 
caused  by  garnishment,  in  a  suit  in  which  there  was  also  direct 
attachment,  the  question  of  malice  is  wholly  relative  to  the 
garnishment.^     If  there  are  two  attachments  successfully  sued 

1  Biering  v.  First  N.  Bank,  69  Tex.  599. 


§§  1027,  1028.]   RECOVERY  OF  COSTS,  FEES,  EXPENSES,  ETC.   095 

out  by  one  plaintiff  —  the  second  to  take  the  place  of  the  first 
which  has  been  seen  to  be  faulty  —  there  is  no  room  for  a 
damage  suit  against  him  for  wrongful  attachment  if  the  sec- 
ond proceeding  is  right.'  Of  course  he  ought  to  pay  the  costs 
of  the  first  attempt.  A  second  levy,  made  by  another  cred- 
itor, does  not  save  the  first  if  wrongful.-  The  first  attacher 
may  be  liable  for  the  whole  damages,'  or  both  may  be  jointly 
liable  as  trespassers.*  The  attaching  creditor  may  make  him- 
self liable  to  the  garnishee.-^ 

yi.  Kecovery  of  Costs,  Fees,  Expenses,  etc. 

§  1027.  Covered  l)ij  the  l)ond. —  The  bond,  as  ordinarily  writ- 
ten, binds  the  obligor  to  make  good,  not  only  the  loss  and  in- 
jury done  to  property,  but  other  pecuniary  losses  in  the  way 
of  expenditure  when  they  are  traceable  to  the  issuance  of  the 
writ,  including  costs  of  court.**  The  plaintiff  in  a  suit  on  the 
bond  must  allege  in  his  complaint  the  amount  of  attorney's 
fees  and  of  expenses  which  he  has  paid  in  defending  the  at- 
tachment suit;  for  these  are  special  damages  which  cannot  be 
proved  unless  alleged;  this  is  the  rule  in  Alabama.'  Costs 
raav  be  understood  as  included  in  the  hvpothetical  oblioation 
assumed  by  the  plaintiff  in  the  bond.  The  condition  to  pay 
damages  and  costs  includes  costs  of  appeal. 

§  102S.  Counsel  fees. —  Counsel  fees  for  the  defense  of  the 
attachment  suit  and  of  injunction  suits  under  similar  condi- 
tions have  frequently  been  considered  in  estimating  damages 
as  embraced  under  the  obligation  of  the  bond.*     If  such  fees 

1  Baines  r.  Ullman,  71  Tex.  529.  nail  v.    McAfee,    3   Met.    (Ky.)  34; 

'-' Blum  t'.  Stein,  68  Tex.  608.  Nockles  v.  E^gspieler,   53  la.   730; 

3  Stix  u.  Keith,  85  Ala.  465.  Bennett    v.    Brown,   20    N.    Y.    99; 

*  Leeser  v.  Boekhoff,  33  Mo.  App.  Campbell  v.  Chamberlain,  10  la.  337. 
223.  7  Ross    V.    Malone,    97    Ala.    529; 

5  Focke  V.  Blum,  82  Tex.  436.  Boggan  v.  Bennett  (Ala.),  14  So.  742 ; 

•^  Lowenstein  i\  Monroe,  55  la.  82;  Railroad  Co.  r\  Tapia,  94  Ala.  226. 
Dunning   v.  Humphi-ey,  24   Wend.         ^  Cockles  v.  Eggspieler,  53  la.  730: 

31;  Schuyler  v.  Sylvester,  28   N.  J.  Weller  r.  Hawes,  49  id.  45;  Hayden 

L.  487;    State  v.   McKeon,   25  Mo.  %'>.  Sample,  10  Mo.  215;  Raymonds. 

App.  667 ;  Hayden  ^^  Sample,  10  Mo.  Green,   12   Neb,   215;  41   Am.    Rep. 

215 ;  Kelly  u.  Beauchamp,  59  id.  178 ;  763;  Wilson   v.  Root,  43  Ind.  486; 

Winsorv.  Orcutt,  11  Paige.  578;  Hell-  Littlejohn   v.    Wilcox,   2  La.  Ann. 

man  v.  Fowler,  24  Ark.  235;  Trap-  620;  Jones  v.  Doles,  3  id.  588;  Mc- 


696  DAilAGES    FOR   WKONaFUL    ATTACHMENT.  [§  1029. 

are  taxed  with  the  costs,  they  are  as  clearly  recoverable  from 
the  oblicor  as  the  bills  of  the  clerk  and  sheriff.  But  neither 
the  former  nor  the  latter  are  taxable  or  recoverable  when  they 
are  overcharged.  It  is  only  legal  costs  which  the  obligor  is 
bound  for.  So  far  as  court  charges  are  concerned,  they  are 
usually  embraced  in  the  judgment, -so  that  if  the  attachment 
is  dissolved  they  are  collected  of  the  plaintitf  by  the  officers, 
and  there  is  no  contest  to  follow  concerning  them  between  the 
parties  litigant.  But  if  the  defendant  has  paid  them  and  after- 
wards seeks  to  recover  them  of  the  plaintitf,  he  can  only  re- 
cover legitimate  costs.  It  does  not  matter  that  he  has  paid 
them  and  that  he  exhibits  receipts  therefor:  he  should  have 
contested  the  illesfal  charges.  It  does  not  even  matter  if  the 
illegal  costs  have  been  taxed  by  the  court;  for  the  taxing  was 
a  judgment  to  which  the  plaintiff  was  not  a  party  AVere  the 
plaintiff  a  party  to  it,  the  case  would  be  different.  So  of  the 
taxing  of  counsel  fees.  The  court  ought  to  allow  reasonable 
charges  only;  but  where  the  law  has  provided  a  fee-tariff  and 
the  court  allows  an  excess,  the  defendant,  if  obliged  to  pay, 
cannot  recover  of  the  plaintiff  on  his  bond  at  the  termination 
of  the  suit  in  the  defendant's  favor  any  more  than  the  legal 
fee,  provided  the  plaintiff  was  not  concluded  by  the  allowance 
as  a  party  to  the  rule. 

§  1029.  "Whatever  is  rightfully  taxed  as  fees  and  costs  may 
be  recovered  on  the  bond,  if  the  defendant  is  responsible  for 
them  to  his  counsel  or  to  the  officers  of  court,  it  has  been  held, 
whether  he  has  already  paid  them  or  not;^  but  the  case  is 

Rae  V.  Brown,  12  id.  181;  Phelps  v.  11  Wend.  229;  Fitzpatrick  v.  Flagg, 

Coggeshall,  13   id.  440;  Transit  Co.  12   Abb,  Pr.   189;  Corcoran   v.  Jud- 

V.  McRea,  id.  214;  Burton  v.  Smith,  son,   24   N.  Y.  106;  Buckler   v.  Van 

49  Ala.  293;  Boiling  u.  Tate,  65  id.  Diver,    70  Miss.    622:    Marquese  v. 

417;  39  Am.  Rep.  5;  Seay  v.  Green-  Southmeyer,  59  id.  430.     Compare 

wood,  21  id.  491 ;  Brown  v.  Jones,  5  Lyman  v.  Lauder baugh,  75  la.  481 ; 

Nev.  374;  Swift  v.  Plessner,  39  Mich.  Schmick  v.  Noel  (Tex.),  8  S.  W.  83. 

178 ;  Behrens  v.  McKenzie,  23  la.  333 ;  Attorney's  fees  have  been  disallowed 

Byford  v.  Girton  (la.),  57  N.  W.  588.  as  damages  when  the  owner  was  not 

See   Littleton   v.  Frank,  2  Lea,  300;  disturbed  in  possession.     Baldwins. 

Vorse  V.  Phillips,   37  la.  428;  Bank  Walker,  94  Ala.  514. 

V.  Heath,  45  N.   H.   524;  Morris   v.  i  Jones  r.  Doles,  3  La.  Ann.  588. 

Price,  2  Blackf.  457 ;  Murray  v.  Mun-  In  Patton  v.  Garrett,  37  Ark.  605,  it 

ford,  2  Cow.  400;  Shultz  v.   Morri-  Avas  held  that  attorney's  fees  are  not 

son.  3  Met.  (Ky.)98;  Boydr.  Brisban,  actual  damage  and  not  recoverable. 


§  1030.]  RECOVERY    OF    COSTS,  FEES,  EXPENSES,  ETC.  697 

; 

stronger  when  he  has  paid/  and  prepayment  has  been  held 
essential.-  If  either  counsel  or  officer  has  released  him  from 
the  payment  he  cannot  recover  on  the  bond  for  the  sura  re- 
leased. If  he  has  already  paid,  that  fact  would  not  enable 
him  to  make  the  obligor  of  the  bond  refund  to  him  an  equal 
sum,  if  the  payment  was  illegal  or  excessive.  The  payment 
should  be  considered  as  a  circumstance  in  his  favor,  showing 
his  good  faith,  and  proving  how  much  he  has  lost  by  the 
wrongful  attachment;  but  he  should  have  performed  the  very 
disagreeable  duty  of  opposing  the  illegal  bill  before  he  paid 
it;  and,  if  he  has  avoided  such  duty,  he  cannot  recover  of  the 
plaintiff  merely  because  he  has  paid  it.  The  plaintiff  would 
have  the  same  right  to  contest  it  that  the  defendant  previously 
had.  It  has  been  held  that  if  the  attachment  bond  contains 
a  stipulation  that  a  reasonable  attorney  fee  shall  be  allo\,'ed 
as  part  of  the  costs,  it  may  be  allowed  though  in  excess  of  the 
bond.^ 

§1030.  Untaxed  fees. —  Are  untaxed  counsel  fees  recover- 
able on  the  bond?  This  has  been  a  mooted  question,  and  it 
requires  notice  more  at  length  than  most  of  the  others  arising 
in  actions  on  such  instrument.  The  obligation  is  to  pay  what- 
ever damages  the  obligee  may  suffer  by  reason  of  the  wrong- 
ful attachment.  The  obligee  is  driven  to  the  defense  of  the 
suit  and  must  have  counsel  and  must  pay  for  it  and  ought 
to  be  reimbursed  for  such  forced  outla3'as  for  any  other  when 
the  fee  is  reasonable  and  its  payment  obligatory.  Such  loss 
of  money  is  a  consequence  of  the  wrongful  attachment.*  "The 
necessity  of  paying  such  counsel  fees  is  an  actual  damage 
which  the  defendants  have  sustained.  .  .  .  It  is  not  a  mere 
matter  of  discretion,  as  the  condition  of  the  bond  is  impera- 
tive, that  the  obligors  in  the  bond  shall  pay  .  .  .  such 
damages  "  as  the  obligees  may  sustain  by  reason  of  the  injunc- 
tion. The  action  which  Chancellor  Walworth  was  consider- 
ing when  he  made  the  above-quoted  remarks  was  upon  an 

1  Damron  r.   Sweetzer,   16  Bram-    Wilson  v.  McEvoy,  25  id.  169 ;  Prader 
well,  339;  Tyler  v.  Saflford,  31  Kan.     v.  Grimm,  28  id.  11. 

608;  State  v.   McHale,  16  Mo.  App.  3  Union  Mercantile  Co.  u.  Chandler 

478;  State  v.  Thomas,  19  Mo.  613;  (la.),  57  N.  W.  595. 

Frost  V.  Jordan,  37  Minn.  544.  *  Hayden  v.  Sample,  10  Mo.  215. 

2  Elder  v.   Kutner,    97    Cal.    490; 


698 


DAMAGES    FOE   WRONGFUL    ATTACHMENT.  [§  1031. 


injunction  bond,  but  it  involved  the  principle  here  under  con- 
sideration.^ He  goes  on  to  reason  that  under  a  covenant  of 
warranty  in  a  conveyance,  the  evicted  grantee  may  recover 
of  his  grantor  the  necessary  counsel  fees  which  he  has  paid  in 
defending  the  title  as  a  part  of  the  damages  sustained  by  the 
breach  of  warranty,  and  that  the  right  to  recover  such  fees  in 
the  bond  suit  is  the  same  in  principle. 

If  there  is  perfect  analogy  between  a  suit  on  an  attachment 
bond  and  one  on  an  injunction  bond,  no  conclusive  argument 
can  be  based  on  such  analogy  to  prove  that  counsel  fees  are 
allowable;  for,  though  they  have  often  been  held  so,^  they 
have  sometimes  been  held  to  the  contrary.^  And,  with  refer- 
ence to  the  argument  drawn  from  actions  by  a  vendee  on  the 
breach  of  the  covenant  of  warranty,  it  is  not  everywhere  set- 
tled that  the  attorney  fees  not  taxed,  which  the  ejected  grantee 
has  been  obliged  to  pay  in  defending  the  title,  can  be  recov- 
ered as  damages.'* 

§  1031,  "Attorney's  fees  for  prosecuting  the  defendant's 
claim  for  damages  cannot  be  considered  as  a  natural  and 


1  Edwards  v.  Bodine,  11  Paige, 
223. 

2  Corcoran  v.  Judson,  24  N.  Y.  106 ; 
Bank  v.  Heath,  45  N.  H.  524;  Brown 
V.  Jones,  5  Nev.  374 ;  Fitzpatrick  v. 
Flagg,  12  Abb.  Pr.  189;  McRae  i\ 
Brown,  12  La.  Ann.  181 ;  Murray  v. 
Munford,  2  Cow.  400;  Boyd  v.  Bris- 
ban,  11  Wend.  229;  Boiling  v.  Tate, 
65  Ala.  417;  39  Am.  Rep.  5;  Holmes 
V.  Weaver,  52  Ala.  516;  Garrett  v. 
Logan,  19  id.  344;  Miller  v.  Garrett, 
35  id.  96 ;  Pounds  v.  Hamner,  57  id. 
343. 

SQliphant  v.  Mansfield,  36  Ark. 
191 ;  Oelrichs  V.  Spain,  15  Wall.  211 ; 
Ferguson  v.  Baker,  24  Ala.  402 ;  Bul- 
lock V.  Ferguson,  30  id.  227 ;  AdaTii 
V.  Gomila,  37  La.  Ann.  479;  Mc- 
Daniel  v.  Gardner,  34  id.  341. 

4  In  Turner  v.  Miller,  42  Tex.  418 ; 
19  Am,  Rep.  47,  this  subject  is  learn- 
edly discussed,  and  fees  disallowed. 
In  the  opinion,  and  in  a  note  ap- 
pended by  the  reporter  in  the 
American    Reports,    the    following 


cases  are  cited  which  favor  the  allow- 
ance: Rickert  v.  Snyder,  9  Wend.-^ 
422;  Rewe  v.  Heath,  23  Tex.  620,  on 
special  promise  by  grantor;  Staatsv. 
Executors  of  Ten  Eyck,  3  Caines, 
115-117;  Robertson  v.  Lemon,  2 
Bush,  301 ;  Dalton  v.  Bowker,  8  Nev. 
190;  Keeler  v.  Wood,  30  Vt.  242; 
Smith  V.  Sprague,  40  id.  43,  Refer- 
ence is  made  in  the  note  to  McGary 
V.  Hastings,  39  Cal.  360;  2  Am.  Rep. 
456;  Levitzky  v.  Canning,  33  Cal. 
299:  Harding  v.  Larkin,  41  111,  413; 
Mayor  v.  Dunnavant,  25  id.  362; 
Hoot  V.  Spade,  20  Ind.  326;  McAl- 
pine  V.  Woodruff,  11  Ohio  St.  120; 
and  to  the  following  contra:  Hale  v. 
The  City  of  New  Orleans,  13  La. 
Ann.  502;  Sarpy  v.  New  Orleans,  14 
id.  311 ;  Williams  v.  Le  Blanc,  id. 
757 ;  Yokum  v.  Thomas,  15  la,  67 ; 
Clark  V.  Brott,  71  Mo.  473 ;  Frank  v. 
Chaff e,  34  La.  Ann.  1203.  See  Strauss 
V.  Dundon  (Tex,  Civ.  App.),  27  S.  W. 
503. 


§§  1032,  1033.]       KECOVERT    OF   COSTS,  FEES,  EXPENSES,  ETC.       699 

proximate  consequence  of  the  suing  out  and  levy  of  the  writ 
of  attachment,  and  is  not  an  element  of  dama<^e.''^ 

The  injustice  of  not  remunerating  the  grantee  for  whatever 
he  is  compelled  to  pay  by  reason  of  a  breach  of  warranty  on 
the  part  of  the  grantor  must  be  apparent  to  the  candid  mind; 
and  what  he  is  obliged  to  pay  to  his  counsel  ought  not  to  con- 
stitute any  exception.  Ordinarily,  the  burden  of  the  defense 
of  an  ejectment  suit  falls  upon  t!ie  grantor  who  is  called  in 
warranty,  but  the  grantee  is  in  court  and  has  rights  to  be 
looked  after,  and  his  interests  would  be  likely  to  suffer  were 
they  not  protected  by  a  competent  representative. 

§  1032.  If  the  analogy  between  such  suits  by  grantees  and 
suits  on  injunction  bonds  on  the  one  side,  and  those  now 
under  treatment  on  the  other,  were  perfectly  established;  if 
in  all,  counsel  fees  were  admitted  to  be  recoverable  as  dam- 
ages, it  would  not  follow  that  whatever  fees  have  been  paid 
or  agreed  upon  by  the  defendant  and  his  counsel  are  recov- 
erable from  the  obligor  of  the  attachment  bond.  Indeed,  in 
none  of  the  classes  of  cases  above  noticed  are  unreasonable 
fees  thus  collectible.  What  is  and  what  is  not  unreasonable 
is  a  matter  for  decision.  A  fee  may  seem  large  yet  not  be 
unreasonable.  A  fee  may  be  what  the  defendant  of  the  at- 
tachment suit  was,  by  reason  of  the  attachment,  obliged  to 
pay  in  order  to  get  the  best  aid.  He  is  entitled  to  the  best. 
He  ought  to  be  reimbursed  for  what  the  ablest  professional 
services  rendered  have  reasonably  cost  him.  But,  however 
valuable  the  services,  no  damages  can  be  recovered  if  they 
were  gratuitously  rendered.  When  no  law3'er  was  emplo3'ed 
except  to  move  for  a  new  trial,  no  fee  was  allowed  as  dam- 
ages." 

§1033.  Expenses. —  Unnecessary  expenses  incurred  by  the 
attachment  defendant  are  not  allowable  as  elements  of  dam- 
age.^ Traveling  expenses  have  been  allowed,^  but  ordinary 
personal  expenses  in  attending  court  have  been  denied.'^  It 
seems  reasonable  that  such  outlays  should  be  reimbursed  if 
distinctly  attributable  to  the  wrongful  attachment  and  made 
necessary  by  it. 

1  Yarborough  v.  Weaver  (Tex.),  25        s  state  r.  Kevill,  17  Mo.  App.  144. 

S.  W.  408 ;  Landa  v.  Obert.  45  Tex.  542.        4  State  v.  Shobe,  23  Mo.  App.  474. 

2Trauiiiiell  v.  Ramage,  96  Ala.  66G.        SGooUbar  v.  Lindslcy,  51  Ark.  380. 


TOO  DAMAGES    FOR    WRONGFUL    ATTACHMEXT.       [§§   lOott,   1035. 

§1034.  Costs  as  to  sureties. —  Sureties  on  an  attachment 
bond  which  obligates  the  principal  for  costs  become  liable 
for  all  the  costs  of  the  suit;  and  it  has  been  held  that  their 
liability  is  not  confined  to  the  attachment  proceeding  consid- 
ered apart  from  the  personal  suit,^  They  have  been  held  lia- 
ble not  only  for  costs,  but  also  for  expenses  and  disbursements 
adjudged  to  the  defendant.^  But  this  does  not  include  attor- 
ney's fees.^  That  may  depend,  however,  upon  the  terms  of 
the  bond  and  upon  the  taxing  of  such  fees  in  the  case.  The 
sureties  on  a  bond  given  by  a  claimant  of  attached  property 
are  bound  with  him  for  the  costs.* 

§  103^.  Costs  due  officer. —  The  sheriff  or  marshal  is  entitled 
to  make  his  costs  out  of  the  attached  property  when  there  is 
judf-raent  for  the  plaintiff.  He  may  retain  it  till  the  fees  are 
paid.'  The  defendant  cannot  settle  with  the  plaintiff  and 
have  the  case  against  him  dismissed,  and  thus  waive  his  action 
on  the  undertaking,  so  as  to  deprive  the  court  officers  of  their 
right  to  secure  their  fees  either  from  the  attached  property  or 
the  undertaking.®  The  expense  of  the  keeping  of  property 
falls  on  the  part}?'  cast.  The  sheriff  may  reimburse  himself 
from  the  proceeds  of  an  attachment  sale  when  his  charges 
have  been  allowed,'^  His  charges  for  assistance  rendered  to 
him  in  the  disposition  and  sale  of  perishable  property,  having 
been  allowed  in  the  lower  court,  the  review  of  the  order  was 
refused  in  the  appellate  court.^  But  neither  the  proceeds  of 
attached  property  nor  the  property  itself  is  liable  to  the  sheriff 
for  his  costs  and  disbursements  when  the  defendant  is  not  the 
owmer.^ 

1  Greaves ^•.  Newport,  41  Minn.  240;  5  Perrin  v.  McMann,  97  Cal.  52. 
Lee  V.    Homer,   37   Hun,    634;    109  ^id.     gee  as  to  sheriff's  recourse 
N.  Y.  830.  when  attachment  has  been  vacated, 

2  Drake  v.  S  worts  (Or.),  33  P.  563 :  Bo  we  v.  United  States  Reflector  Co., 
Ging  Gee  v.  Ah  Jim,  7  Fed.  811.  66  How.  Pr.  41. 

3  Northampton  Bank  v.  Wylie,  52  ^  McNeil  v.  Bean,  32  Vt.  429:  Glea- 
Hun,  146.  Contra:  Territory  v.  son  r.  Briggs,  28  id.  135;  Felker  v. 
Rindscoff,  4  N.  M.  363.  Emerson,  17  id.  101 ;  Tarbell  v.  Dick- 

■1  McEh-ath  1?.  Whetstone,   89  Ala.  inson,  3  Gush.  345;  Phelps  v.  Camp- 

623;  Comer  V.  Reid,  93  id.  391;  Fort  bell,  1  Pick.  59;  Hanness  v.   Smith, 

Worth,  etc.  v.  Hitson  (Tex.),  14  S.  W.  1  Zab.  495. 

843;  Wallace  v.  Terry  (Tex.),  15  S.  » Toledo  Savings  Bank  v.    Johns- 

W.    35;  Williams    v.    Bernwell,    78  ton  (la.),  57  N.  W.  622. 

Tex.  326.  i»  Brand  v.  Brown,  70  Hun,  388. 


INDEX. 


The  references  are  to  sections. 
ABANDONMENT  — 

of  attached  property  b}^  the  keeper,  565,  566. 

when  the  sheriff  may  regain  possession,  566, 

of  possession,  destroys  jurisdiction  over  attached  property,  615. 

of  attachment  by  the  seizing  creditor  gives  junior  attacher  the  first 

rank,  809. 
of  attachment  by  the  seizing  creditor  gives  defendant  right  of  action 

for  damages,  969. 
of  attachment  of  land  does  not  make  an  order  of  release  necessary,  560. 
by  creditor  of  a  part  of  attached  property,  831. 
by  making  a  second  seizure,  releasing  the  first,  918. 
of  attachment  by  the  return  nulla  bona  to  execution,  946. 
by  garnishee  of  property  held  by  him,  580,  587. 

of  garnishment  by  the  garnishor  cannot  affect  the  garnishee's  right  to 
costs,  940. 
defeats  an  intervener,  823. 
of  claim  by  not  intervening,  when,  788. 
of  right  to  claim  exemption,  735. 
of  domicile,  44,  46. 

ABATEMENT  (see  Dissolution  of  Attachment;  Quashing  for  Patent 
Errors)  — 
may  be  pleaded  to  resist  an  amended  afiSdavit,  150. 

when  the  petition  is  erroneous  as  to  plaintiff's  name,  87. 

when  garnishment  proceedings  are  pending  against  the  defendant, 

951. 
in  state  court  by  defendant  garnished  in  federal  court,  951. 
may  not  be  pleaded  because  of  an  order  discharging  garnishee,  960. 
of  attachment  by  the  death  of  the  defendant,  920. 

ABOUT  — 

to  remove  from  the  state  or  county,  27. 

property  from  the  state,  27,  705. 
to  fraudulently  convey  property,  27. 

convert  property  into  money  to  defeat  creditors,  37, 

assign  property,  71. 

conceal  property,  59. 
to  abscond,  56,  134,  807. 


702  INDEX. 

The  references  are  to  sections. 

ABSCONDING  BY  DEBTOR  — 
to  avoid  process,  50-52. 
by  leaving  the  state  or  county,  51,  52. 
by  secreting  himself,  30,  54. 
charged  in  affidavit  for  attachment,  124-5. 
forfeits  right  to  claim  exemption,  735. 
leaves  debtor's  i^roperty  to  be  managed  by  auditors,  where,  883. 

ABSENCE  — 

held  to  mean  non-residence,  in  some  statutes,  30. 

affected  by  the  intention  of  the  debtor,  44. 

may  create  presunaption  of  non-residence,  45. 

whether  permanent  or  not  may  be  inferred,  46. 

without  fixed  abode,  47. 
ACCEPTANCE  OF  SERVICE  — 

renders  summons  unnecessary,  198. 

not  by  garnishee,  493. 

ACCOUNT  BOOKS— 

attachment  of,  is  not  attachment  of  the  debts  therein  charged,  274. 

not  generally  attachable  as  evidence  of  debt,  except  by  some  statutes, 
275. 
ACTION  (see  Cause  of  Action). 

ADDRESS  OF  THE  WRIT  — 

may  be  amended  by  the  clerk,  when,  225. 

ADMINISTRATION  OF  OATH  — 
by  authorized  officer,  109. 
by  clerk  of  court  or  deputy,  109. 
not  by  plaintiff's  lawyer  as  notary,  109. 

ADMINISTRATOR  — 

as  to  garnishment,  403-411. 

when  liable,  404,  408. 

when  not  liable,  43,  406. 
AFFIANT  — 

in  general,  105-107. 
when  plaintiff,  105. 

a  corporation,  105,  106. 

an  agent,  105,  106. 

a  third  person  interested,  105. 

an  attorney  at  law,  107. 

by  power  of  attorney,  106. 

AFFIDAVIT  FOR  ATTACHMENT  — 
in  general,  105-160. 
made  by  whom,  105-107. 
how  executed,  108-110. 
signature  of  affiant,  108. 

of  officer  to  the  jurat,  108. 
sworn  before  whom,  109. 


INDEX.  703 


The  references  are  to  sections. 

AFFIDAVIT  FOR  ATTACHMENT  (continued)  — 
filing.  110. 

form  and  essentials,  111-114. 
contents,  111. 

no  description  of  property  to  be  attached,  111, 
no  averment  of  jurisdiction.  111. 
no  statement  of  summons  issued,  111. 
should  show  need  of  the  remedy  sought,  111, 
must  accord  with  the  statute,  112. 

agree  with  the  petition,  79,  82. 

state  the  facts,  112. 
must  state  relative  to  property,  what,  113. 
always  against  a  person,  113. 
one  sufficient  for  several  attachments,  113. 
must  state  the  debt,  115-121. 

character  of  the  debt,  115,  IIG. 
must  not  be  inconsistent,  115. 
not  circumstantial  like  a  petition,  115,  116. 
items  of  debt  not  generally  required,  116. 
in  suit\On  a  note,  116. 
when  suit  on  contract,  117. 
for  debt  due,  117. 
amount  of  the  debt,  118. 

stated  on  certain  knowledge,  118. 

sworn  by  attorney,  119. 

overstated,  120. 

above  counter-claims,  121,  160. 

may  not  be  all  covered  by  the  attachment,  80. 

must  not  exceed  the  demand  of  the  petition,  82,  83. 
as  laying  the  grounds,  122-126. 
must  be  statutorj-,  122. 
charging  fraud,  123. 

specifically,  when,  123. 

absconding,  124,  125. 

non-residency,  125,  126. 

tort,  126. 
on  information  and  belief,  127,  131. 
should  state  absence  of  informant,  when,  138, 

source  of  information,  129. 

reasons  for  belief,  129. 
inferences,  129. 
agent  or  attorney's  belief,  130. 
by  two  or  more  agents,  130. 
whether  agency  should  be  stated,  131. 
certainty,  132-134. 
qualification  bf  statement,  133. 
consistency,  134. 
grounds  joined  copulatively,  134,  135, 

stated  disjunctively,  135,  136. 


704  INDEX. 

Tlie  references  are  to  sections. 

AFFIDAVIT  FOE  ATTACHMENT  (continued)  — 
alternation,  135,  137. 

when  allowed,  135,  136. 

when  there  is  unity  of  idea,  136. 

inconsistent  grounds,  136. 

in  statement  of  the  debt,  137. 
amendments  to,  188-152. 
superfluous  words,  139. 
omission  of  what  the  context  suggests,  189, 

unnecessary  matter,  140. 
omission  of  plaintiff's  name,  141, 

affiant's  signature,  141. 

seal  to  jurat,  141. 
error  in  affiant's  name,  140. 
variances,  79,  142. 
fatal  defects,  143. 
amendable  defects,  144. 
after  issue  of  the  writ,  144,  146,  147. 
after  motion  to  dissolve,  when,  699, 
adding  new  grounds,  145. 
after  rights  acquired  by  third  persons,  145, 
by  changing  counts,  145. 
after  motion  to  vacate,  146. 
when  defendant  is  present,  148. 
by  competing  attacher,  148. 
by  adding  new  matter,  149. 
to  state  corporate  character,  149. 
not  to  reverse  the  meaning,  149. 
when  abatement  not  pleaded,  150, 
before  defect  declared,  151. 
voidable,  attacked  pendente  lite,  152, 
as  to  subsequent  attachers,  152. 
as  evidence,  153-156. 
to  belief,  153,  156. 

proof  to  the  satisfaction  of  the  court,  154, 
traverse.  155. 
jurisdictional,  157-160. 
strictly  construed,  160. 
read  on  rule  to  dissolve,  708,  709. 
corresponding  with  writ,  212,  215. 

AFFIDAVIT  BY  SHERIFF,  203. 

AFFIDAVIT  IN  GARNISHMENT,  481, 

AGENT  — 

of  plaintiff,  may  make  affidavit,  when,  106,  130. 

how  authorized,  131. 

signing  attachment  bond.  183,  184. 
of  corporation,  as  to  service  of  attachment,  333. 


INDEX. 


705 


The  references  are  to  sections. 

ALTERATION  (see  Affidavit  for  Attachment;  Amendment  of  Peti- 
tion OR  Complaint). 

ALTERNATE  ALLEGATIONS  — 

in  affidavit,  when  allowable,  135,  136. 

not  allowable,  136. 
in  statement  of  the  debt,  137. 

ALIQUOT  PARTS  — 

in  distribution  of  proceeds,  815. 
AMENDMENT  OF  AFFIDAVIT  (see  Affidavit  for  Attachment). 

AMENDMENT  OF  PETITION  OR  COMPLAINT  — 

in  general,  81-91. 
as  to  misjoinder,  84. 

maturity  of  the  debt,  84. 

writ  and  affidavit,  84. 

nature  of  debt,  84. 

cause  of  action,  85. 
not  after  levy,  when,  85. 
as  to  error  of  a  name,  86. 

amount  of  claim,  86. 

parties,  87. 

minors,  87. 

defendant,  88. 
relates  to  the  institution  of  the  suit,  when,  88. 
not  when  motion  to  vacate  is  pending,  88. 
to  show  jurisdiction,  89- 
in  federal  courts,  89. 
as  to  radical  mistakes,  89. 

demurrer,  90. 

suretyship,  91. 

AMENDMENT  TO  WRIT  — 
in  general,  220-226. 
as  to  names,  223. 

seal,  224. 

statutory  defects,  858-863. 
after  garnishee's  answer,  379. 

AMOUNT  OF  CLAIM  (see  Affidavit  for  Attachment). 

ANCILLARY  PROCEEDING  — 

apart  from  principal  suit,  3. 

upon  appearance  of  the  debtor,  8. 

requires  notice  to  the  debtor,  200. 

when  debt  is  not  due,  502. 

defendant  cannot  move  for  new  trial  in,  when,  926. 

by  dispossessed  owner  who  is  not  a  party  to  the  attachment  suit,  987. 

ANIMUS  OF  DEBTOR,  46,  56. 

ANOMALOUS  ATTACHMENTS  (see  Exceptional  Attachments). 
45 


706  INDEX. 

The  references  are  to  sections. 

ANSWER  OF  DEFENDANT  (see  Appearance  of  Defendant). 

ANSWER  OF  GARNISHEE  (see  Garnishee's  Disclosure). 

APPEAL  — 

by  plaintiff,  905-7. 
by  defendant,  905. 

if  maintained,  releases  judgment  against  garnishee,  926. 
after  discharge  of  the  garnishee,  961-2. 
while  pending,  renders  payment  to  plaintiff  by  garnishee  premature, 

926. 
with  supersedeas,  907. 
by  garnishee,  924. 

APPEARANCE  OF  DEFENDANT  — 
in  general,  655-8. 
special,  defined,  655. 

purpose,  656. 

does  not  make  appearer  a  party,  when,  657. 

to  except  to  jurisdiction,  658,  661,  665. 

to  move  for  new  trial,  when,  659. 

to  object  to  patent  defects,  662. 

to  test  the  validity  of  the  writ,  664. 

not  proved  by  parol,  664. 
general,- renders  summons  unnecessary,  193. 

cures  want  of  notice,  860. 

at  the  time  required  by  the  summons,  203. 

after  default,  862. 

cures  some  defects  of  affidavit,  148. 

does  not  preclude  exception  to  jurisdiction,  659. 

may  be,  though  nominally  special,  660. 

by  pleading  prescription,  661. 

by  moving  to  set  default  aside,  661. 
to  stay  proceedings,  661. 

by  filing  demurrer,  661. 

by  asking  continuance,  661. 
writ  of  error,  when,  661. 

by  answering  conditionally,  661. 

by  unqualified  entry,  664. 

by  replevying  attached  goods,  664. 

by  bonding,  667,  749. 

waives  irregularities,  665-7. 
of  attachment  bond,  667. 

authorized  by  defendant,  668. 

may  be  set  aside,  when,  668, 

renders  the  suit  personal,  669, 

not  affected  by  attorney's  withdrawal,  669-71. 

necessary,  to  dissolve  on  evidence,  701, 

to  oppose  confirmation  of  sale,  916, 


INDEX.  707 

The  references  are  to  sections, 
ASSIGNMENT  — 

relative  to  attachment,  262-266. 

precludes  subsequent  attachment,  262,  264. 

unless  fraudulent,  263. 
fraudulent,  846. 

how  indicated,  262,  263. 
in  form  of  sale,  263. 
distinguished  from  sale,  263. 
as  to  dissolution  of  attachment,  264. 
as  to  attaching  creditor  claiming  dividend,  264. 
as  to  property  of  non-residents,  265. 
as  to  recording,  265. 
foreign,  266. 

no  estoppel  to  creditors,  when,  370. 
of  claims  for  collection  out  of  the  state,  743. 

inhibitable,  when,  743. 
of  negotiable  note,  839. 
asserted  by  intervenor,  840. 
as  to  preferences,  840. 

accepted  by  all  creditors,  dissolves  attachment,  840. 
void,  when,  841. 
in  foreign  state,  842. 
for  benefit  of  creditors,  844. 
by  partners  in  bankruptcy,  845. 
by  a  partner,  845. 
relative  to  receiver,  847. 

ASSIGNMENT -EEL ATI VE  TO  GARNISHMENT  — 
in  general,  412-427. 
before  garnishment,  412. 
as  to  form,  413. 
for  benefit  of  creditors,  414. 
as  to  excess  unassigned,  415. 
accepted  by  assignee,  416. 

not  all  creditors,  416. 
notice  to  debtors,  417. 
as  to  debt  not  due,  418. 
disclosure  by  assignor's  debtors,  419. 
pleaded  by  intervening  assignee,  420. 
not  pleaded,  assignee  guilty  of  laches,  421. 
notice  to  garnishee,  421. 
by  insolvent,  422. 
illegal  and  fraudulent,  423-427. 

does  not  prevent  garnishment,  423-425. 

purchaser  must  show  payment,  425. 
commissions  of  assignee,  427. 

may  be  questioned  in  garnishment  proceedings,  544. 
if  not  disclosed  by  garnishee,  he  is  liable  after  payment  to  garnishor 
under  oi'der,  966. 


708  INDEX. 

The  references  are  to  sections. 
ATTACHING  — 

in  general,  276-811. 

is  mesne  process,  984. 

selecting  property,  276. 

directions  of  plaintiff,  276,  293,  304. 

defendant,  277. 
real  estate,  278-282. 
return  on,  as  to  land,  278,  279. 
creating  lien.  279. 
interest  in  land,  381. 

constructively  seized,  283. 

of  devisee,  283. 

of  heirs,  283. 

of  mortgagee.  383. 
personalty,  283-290. 

by  actual  seizure,  283,  284,  286,  289. 

removal  not  essential,  284-287. 

growing  crop,  285. 

not  by  notice  and  return,  288,  289. 
by  second  levy,  290,  308. 
stocks,  291. 

when  writ  to  be  executed,  292-295. 
not  after  debtor's  insolvency  declared,  295. 

return  day,  295. 
relative  to  officer's  duty,  296-303. 

service  of  process,  296. 

on  defendant's  servant,  396. 
too  much  or  too  little,  297. 
by  force,  when,  298-300. 
not  by  trickery,  301. 
leaving  copy  of  writ,  303,  324. 
wrongfully,  304-311. 

officer  liable,  when,  304,  306. 

by  taking  third  person's  property,  307. 
temporarily,  to  separate  mingled  goods,  309. 

ATTACHMENT  BOND  — 
in  general,  161-196. 
protecting  defendant,  161-166. 
when  collectible,  162. 
obligee,  163. 

when  good  as  common-law  bond,  164,  165. 
necessary  to  the  writ,  where,  167-169. 
jurisdictional,  168. 
when  filed,  168. 
taken  by  whom,  168,  173. 
damages,  169. 
form,  170. 
matter,  171. 


INDEX.  709 

The  references  are  to  sections, 

ATTACHMENT  BOND  (continued)  — 
seal,  172. 
approval,  173. 
verification  of  surety,  174. 
.amount,  175-177. 

statutory,  175. 

relative  to  the  claim,  176. 

excessive,  177. 
conditions  of,  178-181,  1004. 

relative  to  third  persons,  179. 
prosecution  of  the  suit,  180. 
identification  with  the  suit,  181. 
as  to  the  principal,  182-185. 

his  signing,  182. 

partner  or  agent  signing,  183. 

attorney  at  law  signing,  185. 

power  of  attorney,  184. 
as  to  the  surety,  186-198. 

his  signing,  186. 
firm  name,  187. 
as  to  the  number  of  sureties,  188. 

qualifications,  188. 

obligations,  189,  190. 
surety  not  a  witness,  when,  190. 
additional  security  given,  when,  191,  192. 
substitution  of  one  surety  for  another,  193. 
amendment  of  bond,  194-196. 

before  issue  of  writ,  194. 

after  issue  of  writ,  195. 

after  interests  of  third  pei'sons  have  intervened,  196. 
want  of,  a  ground  for  dissolution,  691. 
new  one  may  be  filed,  when,  699. 

omission  of,  when  required,  renders  clerk  and  plaintiff  liable,  1004. 
has  no  reference  to  the  personal  action,  1005. 
covers  costs.  1027-1029. 

held  to  cover  counsel  fees  of  attachment  defendant,  1028. 
whether  untaxed  fees  are  recoverable  on  the  bond,  1030, 
as  to  expenses,  1033. 

ATTACHMENT  WRIT  (see  Writ  of  Attachment). 

ATTORNEY  AT  LAW  — 

may  make  affidavit  for  attachment,  when,  107,  130. 

to  amount  of  debt,  119. 
may  sign  attachment  bond,  185. 
is  garnishable,  when,  402. 
directed  to  pay  to  a  third  person,  416. 
cannot  affect  suit  by  his  withdrawal,  669-671. 
when  garnishee  is  allowed  his  attorney  fee,  938,  941. 


710  INDEX. 

The  references  are  to  sections. 

AUCTIONEER  — 

his  relation  to  the  owner  of  goods  sold  by  him,  358. 
AUDITORS  — 

of  absconding  debtor's  property,  883. 
AUTHORIZATION  OF  ATTACHMENT,  26-76. 
AVOIDANCE  OF  CREDITORS,  55,  57. 

B. 

BAIL  (see  Surety). 

BAIL  BOND  (see  Dissolution  Bond). 
BAILEE  (see  Keeper  ;  Receiptor). 
BANK  (see  Corporations  as  Garnishees). 
BELIEF  (see  Affidavit  for  Attachment). 

BOND  (see  Attachment  Bond;   Bond  to  Restore;    Bond  to  Release 
Garnishment;   Common-law  Bond;    Dissolution   Bond;  Forth- 
coming Bond;    Garnishment  Bond;   Indemnity  Bond;  Replevy 
Bond). 
BOND  TO  RELEASE  GARNISHMENT  — 
given  by  defendant,  931. 
sued  on,  by  plaintiff,  931. 
as  to  sureties,  931. 

BOND  TO  RESTORE,  622,  959. 
BURDEN  OF  PROOF  — 

on  motion  to  dissolve  attachment,  707-9. 
on  the  reconvenor,  994,  997. 

on  claimant  of  damages  as  to  the  falsity  of  the  attachment  aflBdavit^ 
1013. 
malice  and  want  of  probable  cause,  1031, 
on  purchaser  of  attached  property,  when,  849. 
on  attaching  creditor,  to  show  fraud,  when,  849, 

BUSINESS  PLACE,  29,  40. 

c. 

CARRIER  (see  Common   Carrier). 
CAUSE  OF  ACTION  — 

in  general,  94-104. 

breach  of  contract  to  pay,  94. 
covenant  of  warranty,  94. 

for  the  "i-ecovery  of  money,"  94. 

not  for  unliquidated  damages,  95. 

not  on  unsettled  accounts,  99. 

affected  by  prior  agreement,  95. 

to  collect  subscription,  95. 


I^DEX.  711 

The  references  are  to  sections. 

CAUSE  OF  ACTION  (continued)  — 

novation  of  note,  96. 

not  for  debt  not  due,  when,  96. 

implied  contract,  97. 

debt  certain,  though  not  due,  when,  98,  99. 

debt  partly  due,  98. 

stay  of  judgment,  98. 

at  place  of  payment,  100. 

being  wanting,  damages  may  be  recovered  for  attaching,  1013. 
CAVEAT  EMPTOR  — 

applicable  to  creditor's  sales,  868. 

as  to  recovery  of  purchase-money  after  ejectment,  641. 
CHARGING  THE  GARNISHEE  (see  Garnishee's  Disclosure)— 

the  charging  order,  552,  553. 

not  when  he  is  already  sued  by  his  creditor,  548. 

is  by  interlocutory  order,  552. 

not  defeated  by  defendant's  disclaimer,  553. 
CHOSES  IN  ACTION  — 

when  attachable,  272,  273. 

how  attached,  274,  275. 

how  notes  are  taken  for  collection,  273,  275. 

of  wife,  275. 

as  to  garnishment  in  execution,  948. 

CITY  — 

as  to  garnishment,  439-443. 
not  generally  liable,  439. 
liable  under  statute,  442-8. 
as  to  taxes,  441. 
CLAIMANT  — 

of  attached  property,  816-826. 

must  prove  title,  816-818. 

cannot  deny  that  garnishee  holds,  when,  820. 

of  property,  may  claim  damages  in  the  same  suit,  where,  820. 

cannot  attack  plaintiff's  proceedings  as  irregular,  820. 

may  move  to  dissolve,  when,  821. 

of  proceeds,  in  distribution,  916. 

CLERK  OF  COURT  — 

directed  by  the  court,  208. 

cannot  issue  writs  when  the  bench  is  vacant,  209. 

issues  writs  presumably  under  order  of  court,  210. 

under  statutory  authorization,  211. 

in  due  order  to  the  serving  officer,  216,  219. 
attaching  creditors,  808. 

not  to  an  officer  interested  in  the  case,  225. 
may  take  affidavit,  109. 

bond,  173. 
liable  to  damages  for  not  delivering  wi-its  in  due  order,  808. 


712  INDEX. 

Hie  references  are  to  sections. 

COLLATERAL  ATTACK  (see  Jurisdiction)  — 

not  of  judgment  in  general  proceedings,  with  notice  to  all,  862. 
allowed,  in  general  proceedings,  for  want  of  notice,  887. 
when  the  judgment  is  jurisdictionless,  865. 
when  the  person  attacking  was  not  a  party  in  the  case,  986. 

COLLATERAL  SECURITY  — 

renders  attachment  unnecessary,  30. 
failing,  may  be  followed  by  attachment,  20. 

COLLUSION  — 

between  plaintiff  and  defendant,  to  defraud,  677. 
garnishor  and  garnishee,  966. 
debtor  and  another,  to  defraud,  846. 

a  partner  and  the  plaintiff,  another  partner  may  sue  for  damages 
for  the  firm,  1016. 
COMITY  — 

relative  to  attachment  in  foreign  state,  653,  743,  744. 
does  not  require  that  a  foreign  assignment  be  regarded  when  repug- 
nant to  home  law,  266. 
between  courts  to  prevent  conflict  of  jurisdiction,  988. 

COMMON-LAW  BOND  — 

insufficient  attachment  bond  may  hold  good  as,  750. 
dissolution  bond  may  hold  good  as,  764. 

COMMON  CARRIER  — 

has  lien  on  goods  carried,  268. 
when  holding  as  warehouseman,  451. 
relative  to  garnishment,  449-454. 
for  goods  being  transported,  449. 
as  to  passengers'  baggage,  453. 

COMPLAINT  (see  Petition). 

CONCEALMENT  (see  Grounds  for  Attachment). 

CONDITIONAL  OBLIGATION  - 

in  general,  373-6. 

not  reached  by  garnishment,  372,  373. 

CONFESSION  OF  JUDGMENT  — 

in  favor  of  third  person  to  defeat  creditor  is   concealment   of  prop- 
erty, 71. 
in  favor  of  attaching  creditor,  effect  upon  the  lien  of  junior  attachers, 
811. 
CONFUSION  OF  GOODS  (see  Intermingled  Goods). 

CONSIGNMENT  — 
on  credit,  267,  370. 

when  goods  stopped  in  transitu,  207,  270. 
of  goods,  in  agent's  hands,  369. 
of  goods  not  delivered,  269. 
in  payment,  271. 


INDEX.  713 

TJie  references  are  to  sections. 

CONSTABLE  (see  Officer  Executing  Attachment). 

CONSTRUCTION  OF  STATUTE  (see  Jurisdiction)  — 

strict  to  authorize  the  remedy  and  confer  jurisdiction.  23,  160,  625. 
as  to  prerequisites  to  attaching,  625-37. 
as  to  affidavit,  112. 

as  to  statement  of  the  debt,  115,  110-121,  157-159. 
as  to  notice,  629-633,  878-8.     See  Publication  Notice. 
by  state  supreme  courts  followed  by  federal  courts,  680-633. 
that  jurisdictional  facts  must  appear  of  record,  637,  689. 
that  proof  of  publication  must  appear  of  record,  640. 
that  authorization  of  actions  against  person  or  property  not  subject  to 
process  is  void,  651. 

does  not  extend  to  his  executor,  heirs,  etc.,  43. 
that  the  language  of  the  statute  need  not  be  employed  in  attachment 
affidavit,  122,  160. 

unless  specially  prescribed,  128,  160,  750. 
that  the  attachment  of  evidences  of  debt  requires  express  authoriza- 
tion, 275. 
libei-al,  when  the  authorization  is  clear,  to  insure  justice  and  defeat 

fraud,  23. 
with  reference  to  evidence,  24. 

relative  to  the  exercise  of  jurisdiction  already  acquired,  25,  624,  628. 
as  to  the  commencement  of  an  action,  197-8. 
as  to  non-residency,  32-35,  39. 
as  to  absconding  and  concealed  debtors,  50,  51. 

fraudulent  disposition  of  property,  57,  63-4,  134. 

debtor's  animus  under  contract,  75. 
relative  to  chancery  jurisdiction,  76,  103. 
federal,  as  to  amendments,  89. 
expressly  authorizing  attachment  for  tort,  101. 

as  to  its  implication  that  affidavit  may  be  made  by  an  agent,  105-7. 
on  the  execution  of  attachment  bond,  170. 

as  to  its  amount,  175-8. 
conditions.  181. 
sureties,  188. 
as  to  change  of  sureties  on  attachment  bond,  193. 
requiring  effort  to  effect  personal  service,  199. 
embracing  both  writ  and  summons,  201. 
authorizing  clei'ks  of  court  to  issue  process,  210,  211. 
inhibiting  attachment  suits  against  national  banks,  231. 
authorizing  garnishment  of  persons  —  not  naming  corporations,  443. 
as  consonant  with  exemption  laws,  720. 
relative  to  exemptible  things,  725. 

homesteads,  729,  730. 

garnishment  of  exempt  goods   or  dues,    out  of  the  state,  744, 
745. 

assignment  for  benefit  of  creditors,  844. 


714  INDEX. 

The  references  are  to  sections. 

CONSTRUCTIVE  POSSESSION  — 

is  no  ground  for  garnishment,  371. 

is  not  that  of  a  clerk  or  agent  holding  directly  under  his  employer,  371..  J 

of  personalty  attached  to  realty,  558.  ■ 

of  attached  land,  559. 
CONSTRUCTIVE  SEIZURE—  | 

not  of  chattels,  283-4.  f 

of  land  by  serving  copy  and  returning  writ  executed,  378. 
with  description  returned,  279. 
by  posting  notice  and  making  return,  280. 

of  interest  in  land,  281. 

of  any  interest  in  property  or  intangible  right,  383. 

CONSTRUCTIVE  SERVICE  — 

is  not  by  publication,  343-5,  607-613. 

by  consent  of  the  defendant  previously  given,  606. 
CONTINGENCY  (see  Conditional  Obligation). 

CONTRACT  — 

breach  of,  a  cause  of  action  by  attachment,  94-97, 

of  warranty,  breach  of,  cause  of  action  by  attachment,  94. 

by  attachment  bond,  cause  of  action  by  attachment,  95. 

by  appeal  bond,  attachment  does  not  lie  on,  94. 

for  stock  subscription,  attachment  lies,  95. 

novating  note,  attachment  lies,  96. 

on  outstanding  bank  draft,  attachment  does  not  lie,  96. 

implied,  97. 

how  debt  upon  contract  must  be  stated,  117,  137. 

amount  of  debt,  118. 

overstatement  of  the  amount,  120. 

CONVENTIONAL  LIENS  — 

not  enforceable  by  attachment,  19. 

CORPORATIONS  AS  GARNISHEES  — 
in  general,  428-468. 

public  —  states  and  their  officers  not  garnishable,  428-488. 
for  funds  appropriated,  429. 
why,  430-2. 
counties  generally,  not,  433-8. 

liable  on  contract,  436. 
townsliips,  437. 
school  districts,  438. 
cities,  439-443. 
private  —  liable  as  garnishees,  444-468. 
how  summoned,  444. 
by  whom  to  ansvs^er,  444. 
banks,  445-6. 

national  banks  not  garnishable  before  judgment,  367. 
insurance  companies,  447-8. 


INDEX.  715 

Tlie  references  are  to  sections, 

CORPOEATIONS  AS  GARNISHEES  (continued)  — 
private  —  railroad  companies,  449-454. 

treasurer's  possession  of  tlie  funds,  454. 
servants  of,  455-6. 
ticket  agent,  455. 
teller  of  bank,  455. 
domiciliated  where,  459-462. 
liability  in  different  states,  when,  461-3. 

COSTS  — 

not  adjudged  against  defendant  when  not  notified  and  not  appear- 
ing, 607. 
paid  by  plaintiff  when  garnishee  is  discharged,  943. 

paid  by  defendant  or  by  the  property  when  garnishee  is  charged, 
943. 
allowed  intervenor,  when,  835. 
not  against  judgment  defendant,  918. 
when  charged  against  garnishee,  937-940. 
when  allowed  to  garnishee,  937-942. 

how  paid,  943. 
should  be  paid  by  plaintiff  for  an  abortive  first  attachment,  though 

second  successful,  1026. 
must  be  alleged  by  complainant  who  claims  them  as  damages,  1037. 
as  to  sureties,  1034. 
as  to  officer,  1035. 

COUNTER-CLAIM  (see  Reconvention)  — 
above  discounts  and  offsets,  121. 

COUNTY  — 

not  generally  garnishable,  433-8. 
oflScers  not  generally  garnishable,  433-8. 
jurisdiction  in,  643  and  note  2. 

may  have  writ  of  attachment  issued  therein,  though  the  affidavit  was 
made  in  another  county,  211. 

COURTS  (see  Jurisdiction  ;  Equity). 

CREDITOR'S  BILL  (see  Equity)  — 

to  set  aside  a  fraudulent  assignment,  560. 

in  lieu  of  garnishment  in  execution,  where,  945. 

CROP  — 

how  attached,  285. 

CUSTODIA  LEGIS  (see  Custody  of  the  Law). 

CUSTODY  OF  THE  LAW  — 

property  in,  259-262,  393-411,  428-443. 
when  not  attachable,  259. 
when  attachable,  261. 


716  INDEX. 

The  references  are  to  sections, 

CUSTODY  OF  THE  LAW  (continued)  — 
of  attached  property,  by  the  court,  554. 
under  wrongful  seizure,  985. 

by  sheriff  or  marshal,  554-7. 

by  keeper  or  receiptor,  554-6,  563,  564,  566. 

by  bailee,  563. 

by  mortgagee,  when,  571. 

by  defendant,  when,  567,  573-575. 

by  defendant's  wife,  when,  570. 

by  sub-agent,  568. 

by  defendant's  employee,  when,  569.  • 

by  receivers,  577-8. 
constructive  possession,  558. 
restoration,  557. 
delivery  by  keeper,  572. 
of  real  estate,  559,  560. 
of  insolvent  partnership  property,  423. 
of  goods,  561. 
loss  of.  593-5. 

action  to  recover  property  from  the  officer  must  be  in  the  court  hold- 
ing the  property,  982. 

CUSTODY  OF  THE  LAW  RELATIVE  TO  GARNISHMENT  — 

garnishee  holding  defendant's  property,  579,  581. 

having  lien  on  property  held,  579. 
special  property,  580. 

as  to  junior  garnishors,  582,  587. 

as  a  stakeholder,  583. 

as  to  his  own  rights,  585. 
protects  from  garnishment,  in  general,  393-413. 

court  officers,  etc.,  393-402. 

sheriff,  when,  393-395. 

receivers,  when,  400. 

attorneys,  when,  402. 

executors,  when,  403-411. 

administrators,  when,  403-411. 

CUSTOM  OF  LONDON  — 

does  not  deem  the  debtor  in  court  because  his  credit  is  attached, 

206. 
allows  the  creditor  to  garnish  himself,  359. 
default  after  proclamations,  881. 

no  final  judgment  till  a  year  and  a  day  after  default,  881. 
protects  the  absent  debtor  by  requiring  security  of  the  creditor,  881. 


INDEX.  717 

The  references  are  to  sections. 

D. 

DAMAGES  AGAINST  THE  ATTACHING  CREDITOR  — 
by  reconvention,  in  general,  993-998. 

not  generally  authorized,  993. 

is  allowed  in  several  states,  995. 

is  like  a  cross-bill,  994,  995. 

may  be  either  actual  or  exemplary,  996. 

may  be  defended  how,  997. 

does  not  involve  surety  on  attachment  bond,  993. 

limited  by  the  court's  jurisdiction  as  to  amount,  998. 
by  direct  suit  after  dissolution  of  attachment,  999-1005. 

is  the  common  practice,  999. 
while  attachment  is  pending,  exceptionally  allowed,  1000. 
after  attachment  plaintiff  has  been  nonsuited,  etc.,  1000. 
after  plaintiff's  appeal  has  been  dismissed,  1007. 
mitigated  by  a  subsequent  successful  attachment,  1001,  1026. 
nominal  when  second  attachment  shows  property  liable,  1001. 

corporation  stock  was  seized,  etc.,  1010. 

land  is  attached,  1011. 
by  joint  suit  of  several  persons  who  allege  joint  injury,  1002. 
by  suit  on  the  attachment  bond,  1000-1,  1006. 

only  by  the  obligee,  1002. 

by  joint  obligees,  1008. 
how  alleged  in  the  petition,  1007-8. 
by  bond  suit  against  both  principal  and  surety,  1008. 
are  not  limited  to  the  amount  of  the  bond,  as  to  attaching  creditor,  1008. 
contingent,  373. 
measure  of  actual  damages,  1009. 

for  attachment  of  land,  877,  1011. 

not  the  rental  in  open  market,  1011. 
as  to  loss  of  time,  credit  and  profits,  1010. 
for  directing  the  officer  to  attach  wrongfully,  308. 
for  lack  of  statutory  ground  for  attaching,  1013,  1017. 

cause  of  action,  1013. 
for  injury,  at  suit  of  any  person  injured,  1015. 

claimant  of  attached  property,  820,  831. 

mortgagor,  when,  1015. 

mortgagor,  nominal,  when   property  once   sold, 

1015. 
member  of  a  firm  for  the  firm,  1016. 
exemplary  when  attaciunent  was   malicious  and   without  probable 
cause,  996,  1018,  1019. 

when  malice  may  be  inferred,  1020. 

must  be  proved  by  complainant,  1021. 
to  recover,  complainant  must  allege  want  of  probable  cause,  1018. 
niay  be  recovered  in  suit  against  several  plaintiffs,  when, -1018. 


718  INDEX. 

The  references  are  to  sections. 

DAMAGES  AGAINST  THE  ATTACHING  CREDITOR  (continued)  — 
defenses  to  suit  for,  1021. 
what  constitutes  malice,  1022. 

suit  for,  not  barred  by  judgment  for  attaching  creditor  if  not  final,  1024. 
caused  by  garnishment,  1036. 
include  costs,  recoverable  on  the  bond,  1027. 

to  recover,  with  costs,  fees  and  expenses,  complainant  must  allege 
them,  1027. 

DAMAGES  AGAINST  THE  ATTACHING  OFFICER  — 

for  trespass  when  attaching  without  authority,  304,  958,  975. 

by  trover  for  attaching  property  held  by  assignee,  968. 

by  suit  on  official  bond  for  attaching  without  authority,  968,  977,  978. 

for  injury  to  property  in  custody,  in  suit  by  defendant,  310,  311,  969. 

for  not  executing  writ,  970. 

for  partiality  in  service  of  writs,  970. 

for  taking  too  little,  970. 

for  unnecessary  delay,  292,  970. 

for  making  inefficient  return,  970. 

for  not  keeping  attached  property  safely,  971. 

for  delivering  property  to  junior  attacher,  971. 

defendant  on  order  of  first  attacher,  liable  to 
the  second,  972. 
for  failing  to  replevy  when  divested  of  attached  property,  972. 
for  paying  the  attaching  creditor  without  authority,  973. 
for  dispossessing  a  mortgagee,  974,  981. 

any  lienholder,  980. 
for  attaching  partnership  goods  in  suit  against  a  partner,  975. 
for  attaching  property  not  the  defendant's,  307,  975. 
cannot  be  exemplary  when  there  was  no  fraud  and  property  has  been 

restored,  971. 
measure  of,  971. 

DATE  — 

may  be  inserted  to  fill  a  blank,  on  motion,  when,  141. 
of  the  writ,  when  later  than  that  of  tlie  return,  326. 

DAY  — 

on  which  levy  made  must  be  shown  in  the  return,  325. 

fractions  of,  to  the  hour  and  minute,  reported  to  show  priority,  325. 

of  return  must  be  within  the  life  of  the  writ,  326. 

attachment  writ  not  issuable  on  a  dies  non,  217. 

all  civil  process  at  common  law  issuable  on  legal  days  only,  218. 

DAY  IN  COURT  — 

is  tendered  by  publication  notice,  344. 

DEATH  — 

as  to  abatement  of  attachment,  920. 
as  to  dissolution  of  attachment,  920. 


INDEX.  719 

Hie  references  are  to  sections. 

DEBT  (see  Cause  of  Action)  — 

when  not  due  but  certain,  98-100. 

when  immaturity  is  shown  by  the  promissory  note  evidencing  the 

debt,  83. 
when  action  by  attachment  lies,  98. 
when  fraud  is  charged,  98. 
when  execution  is  stayed,  98. 
partly  due,  98. 

for  unsettled  balances  —  action  on,  by  attachment,  does  not  lie,  99. 
of  contingent  claims  not  cause  of  action  by  attachment,  99. 
must  be  due  to  plaintiff  to  authorize  attachment,  99. 
must  be  supported  by  grounds  for  attachment  relating  to  the  plaintiff 

personally,  27. 
must  be  ordinary  and  liquidated,  1. 
owing  by  a  debtor  beyond  the  state,  32-4. 
as  to  situs  and  place  of  payment,  100,  744-5. 

DECLARATION  (see  Petition). 

DEED  OF  TRUST  — 

when  surplus  attachable,  249. 

DEFAULT  — 

in  general,  878-880. 
when  taken,  878. 
when  set  aside,  879. 

in  general  proceedings  against  things,  880. 
in  limited  proceedings  against  things,  880. 
when  special  exceptions  have  been  overruled,  663. 
after  proclamations,  under  the  custom  of  London,  206. 
of  garnishee,  in  general,  499-502. 
when  and  why,  499. 
set  aside,  when,  500-1. 
not  reviewable,  when,  501. 
DEFECTS  (see  Affidavit  for  Attachment;  Amendment  op  Petition). 

DEFINITION  — 

of  attachment,  1. 

of  garnishment,  469. 
DELIVERY  — 

when  complete,  256. 

subject  to  preliminaries,  269. 

DELIVERY  BOND  (see  Forthcoming  Bond). 
DEPOSIT  — 

of  trust  funds  in  sheriff's  private  name,  366. 

to  the  credit  of  another,  307. 

of  another's  money  in  depositor's  name,  368. 

DEPOSITION  (see  AFFiDA"^aT  for  Attachment). 


720  INDEX. 

The  references  are  to  sections, 
DEPUTY  — 

clerk,  may  take  affidavit,  109. 

issue  writ  of  attaclimeut,  109. 
sheriff,  may  levy  writ  of  attachment,  302. 

DESCRIPTION  — 

of  land  in  return  to  attachment  writ,  278,  279,  317. 
of  personal  property,  316. 
of  property  generally,  318-321. 
in  publication  notice,  310. 

DIES  NON  (see  Day). 

DISCHARGE  OF  GARNISHEE,  524. 

DISCLOSURE  (see  Garnishbe's  Disclosure). 

DISPOSING  OF  PROPERTY  FRAUDULENTLY  (see  Fraudulent  Dis- 
position OF  Property). 

DISSOLUTION    OF   ATTACHMENT    ON   GROUNDS    BEYOND    THE 
RECORD  — 
on  motion,  when  made,  683. 

not  after  answer  to  attachment,  683. 

requisites,  684. 

assignment  of  defects,  685. 

after  special  notice,  685. 

after  general  appearance,  702. 

after  motion  to  quash  for  patent  ei-rors,  703. 

by  claimant,  when,  821. 
because  the  affidavit  is  false,  700. 

the  statute  has  not  been  followed,  702. 

the  plaintiff's  purpose  is  to  defeat  another  creditor,  702. 

a  like  suit  is  pending,  702. 

judgment  has  been  rendered  and  execution  issued  on  the  debt,  702. 

there  has  been  fraud  and  collusion,  846. 
by  rule  taken,  when,  703. 

verified,  how,  702. 

as  of  right,  without  statute,  704. 
on  testimony  after  laying  the  ground,  705. 
burden  of  proof,  707-709. 
evidence  adduced  by  defendant,  705. 

plaintiff,  705. 
effect  of,  on  personal  action,  710. 

as  to  appeal,  710. 

as  to  restoration,  710. 
whether  allowed  after  bonding,  711. 

reasons  for  allowing  then,  711-713, 

decisions  allowing,  714,  715. 

decisions  denying,  716. 

as  to  sureties,  717. 


INDEX. 


721 


The  references  are  to  sections, 

DISSOLUTION  BOND,  762-769. 
as  to  the  lien,  762,  765-6. 
conditions,  how  construed,  764. 
by  each  of  several  defendants,  766. 
subsequent  judgment  without  privilege,  767. 
releases  the  property  %vholly,  767. 

garnishment,  769. 
sureties,  770-777. 

DISTRIBUTION  OF  PROCEEDS  OF  SALE  — 
2^ro  rata,  where,  791,  815. 
by  moieties,  when,  814,  815. 
by  auditors,  where,  882-3. 
by  court,  among  creditors,  915,  916, 

DOMICILE,  38. 

DRAFT  — 

for  collection,  274. 

DUALITY  OF  ATTACHMENT  SUIT  — 
in  general,  9,  90. 

when  attachment  is  sejjarately  sued  out,  93. 
appears  by  the  issue  of  both  summons  and  writ,  205. 
did  not  exist  under  the  custom  of  London,  207. 
two  remedies  held  not  inconsistent.  890. 

personal  suit  may  be  prosecuted  to  judgment  while  appeal  from  dis- 
solution of  attachment  is  pending,  906. 

DWELLING-HOUSE  — 

not  to  be  broken  into  when  attaching,  298-9. 
in  form  of  flats  and  rooms,  299. 


E. 

EQUITY  — 

attachment  may  be  aided  by,  when,  103. 

as  to  wife's  claim,  103. 

as  to  wife's  separate  estate,  103. 

as  to  partners,  378. 

as  to  copartner's  property,  103. 

accommodation  maker  of  note,  103. 

chancery  proceeding  against  corporation,  104. 

jurisdiction  over  non-residents,  76. 
injunction  against  sale.  104. 

attachment  of  land  frauduleiitlj'  conveyed,  778. 
by  bill  in,  second  attacher  cannot  set  aside  the  first  attachment,  805. 

by  attaching  creditor  to  set  aside  a  fraudulent  assignment,  560. 
may  be  invoked  by  second  attacher,  when,  103,  note  9. 
will  give  relief  to  garnishee,  when,  952. 

46 


722  INDEX. 

The  references  are  to  sections. 

EQUITY  (continued)  — 

bit!  in,  for  performance  of  contract,  when  attaching  creditor  is  a  party, 

976, 
gives  relief  to  garnishee  from  second  payment  when  he  was  misled  to 

make  disclosure,  966. 

ESTOPPEL  — 

as  to  garnishee,  426. 

EVIDENCE  (see  Burden  of  Proof)  — 

to  satisfy  the  court  that  attachment  writ  should  be  issued,  154. 

of  the  plaintiff's  affidavit,  153-156. 

of  the  publicity  of  attachment  admissible  in  damage  suit,  1012. 

that  other  attachments  followed  in  damage  suit,  1012. 

affidavit  for  replevin  not  admissible  in  damage  suit,  when,  1012. 

that  more  was  attached  than  shown  by  the  return,  1014. 

that  defendant  was  insolvent,  inadmissible  in  defense  of  suit  on  attach- 
ment bond,  1014. 

that  good  grounds  existed,  inadmissible  in  defense  of  suit  on  attach- 
ment bond,  1014. 

that  affidavit  to  belief  was  sincere,  inadmissible  in  defense  of  suit  on 
attachment  bond,  1014. 

that  attaching  creditor  knew  of  another  attachment,  allowed,  1014. 

that  goods  sold  brought  a  fair  price,  1014. 

that  the  attaching  creditor  induced  the  sale,  shown  by  indemnity  bond, 
1014. 

of  fraud,  adduced  from  conversation  at  the  sale,  976. 

affidavit  for  replevin  is  not  admissible  as  evidence,  when,  1013. 

of  the  sale  to  one  who  claims  attached  property,  849. 

EXCEPTIONAL  ATTACHMENTS  — 

on  exceptional  causes  of  action,  101-104. 
for  tort,  101,  102. 

for  money  fraudulently  obtained,  75. 
on  exceptional  grounds,  28,  78-76. 

fraudulently  contracting  the  debt,  73-75. 
incurring  the  debt,  73,  74. 
of  water-craft  by  general  proceedings  i7i  rem,  9S9,  990. 
coming  into  the  state,  bringing  goods,  having  absconded  from  the  state 
of  his  former  residence,  76. 

EXECUTION  (see  Garnishment  in  Execution;  Sale)  — 
differentiated  from  attachment,  652,  719,  731,  984. 
is  final  process,  984. 
by  what  writ,  910,  911. 
upon  what  property,  912-914. 
cannot  be  quashed  after  judgment  by  a  defendant  who  was  served 

with  process,  916. 
stayed,  when  debt  not  due,  98,  884-6. 
aided  by  garnishment,  944-950. 


INDEX.  723 

Tlie  references  are  to  sections. 

EXECUTIVE  OFFICER  (see  Officer  Executing  the  Attachment). 

EXECUTORS  — 

not  liable  to  attachment  suit,  when,  43. 

hold  as  legal  custodians,  when,  403,  405-6. 

liable  to  garnishment,  when,  40S. 

not  adjudged  against,  in  any  specific  sum,  when,  407. 

EXEMPTION  —  RELATIVE  TO  ATTACHMENT  AND  GARNISHMENT, 
in  general,  719-745. 
of  property  not  liable  to  execution,  719. 

not  alienable,  723. 
not  stated  in  attachment  statutes,  720. 
applies  to  garnishment,  721. 
of  property  in  public  use,  723. 

not  of  property  dedicated  as  homestead  after  attachment,  736. 
claimed  before  levy,  724-726. 

by  notifying  officer,  724. 

by  pointing  out  articles,  725. 
claimed  in  court,  727,  728. 

to  dissolve  attachment,  727, 

how,  727. 

by  whom,  727. 

how  proved,  72S. 
claimed  before  judgment,  729,  730. 

not  generalij'  allowed  after,  729. 

exceptional  rule,  730. 
claimed  before  sale,  731-735. 

in  ordinary  causes,  731,  732. 
necessary,  when,  733. 
claimed  by  garnishee  for  defendant,  when,  737-742,  924. 

for  himself,  737. 
set  aside  by  garnishee,  when,  929. 
against  garnishee,  should  show  the  amount,  929. 
of  pensions,  739,  740. 

wages,  741,  742. 

salaries,  when,  742. 

not  of  attorney's  fees,  742. 
relative  to  garnishment  in  a  foreign  state,  743-745. 
travels  with  the  debt,  held,  744. 

but  not  generally,  744,  745. 

EXERCISE  OF  JURISDICTION  (see  Jurisdiction). 

EXPRESSMAN  — 

when  not  garnishable,  453. 


724:  INDEX. 

The  references  are  to  sections. 

P. 

FACTORIZING  PROCESS  (see  Garnishee). 

FAILURE  TO  DELIVER  ON  CONTRACT  — 

an  exceptional  ground  for  attachment,  28. 
FAITH  AND  CREDIT  — 

given  to  judicial  proceedings  of  other  states,  645,  646. 
FEDERAL  COURTS  — 

follow  state  statutes,  630,  650. 

have  no  rights  superior  to  tliose  of  state  courts,  as  to  attachment,  630. 

look  to  the  construction  of  statutes  by  state  courts,  63L 

are  not  foreign  tribunals  in  relation  to  state  courts,  650. 

have  separate  jurisdiction,  650. 

as  to  amendments,  89. 
FEES  — 

may  be  allowed  to  garnishee,  941. 
in  court's  discretion,  when,  942. 

must  be  alleged  by  complainant  to  recover  them  as  damages,  1027. 

untaxed,  1030. 

not  a  proximate  consequence  of  attachment,  1031,  1033. 
FILING  THE  PETITION  — 

in  general,  92-3. 

before  issue  of  the  writ,  92. 
FILING  THE  AFFIDAVIT,  110. 
FORCE  IN  ATTACHING,  298-300. 
FOREIGN  ATTACHMENT  — 

non-residence  treated  much  like  other  grounds,  3. 

distinct  from  domestic  in  practice  of  some  states,  3,  882-3. 

judgment  not  final,  when,  881-6. 
FORFEITURE  — 

of  exemption  right,  735. 
FORM  — 

of  petition,  77. 

of  summons,  197. 

of  forthcoming  bond,  750.  ♦ 

prescribed  by  statute,  should  be  followed,  128,  160,  750. 

FORTHCOMING  BOND  — 
in  general,  746-761. 

differs  from  dissolution  bond,  how,  748. 
made  to  the  sheriff,  746,  749. 
does  not  divest  the  court  of  control,  747. 

destroy  the  lien,  748. 
form,  750. 
errors,  750. 


INDEX. 

The  references  are  to  sections. 

FORTHCOMING  BOND  (continued)  — 
special  contract,  751. 
plaintiff,  the  obligee,  752. 
joint  and  several,  when,  752. 
given  ah  a  right,  753. 

by  part  owner,  755. 
not  defeated  by  replevy,  754. 
sureties  on,  cannot  replevy,  when,  993. 
as  to  part  of  res,  756. 
condition,  756-7. 
how  released,  761. 

by  personal  judgment,  766. 
how  affected  by  general  judgment,  897. 

FRAUD  (see  Fraudulent  Disposition  of  Property)  ■ 
in  contracting  debt,  73-75. 
between  plaintiff  and  defendant,  677. 
by  collusion,  846, 

as  to  its  denial  by  the  debtor,  705,  709. 
of  first  attacher  exposed  by  the  second,  795. 
is  ground  for  vacating  attachment,  797. 
is  ground  for  arresting  judgment,  928. 
invalidates  sale,  873. 

FRAUDULENT  DISPOSITION  OF  PROPERTY  — 
in  general,  57-72, 
statutory  provisions,  57. 
inferred  from  circumstances,  58,  66,  70-73. 
presumption  of,  when,  58. 
withholding  property,  58. 
concealment  of  property  or  money,  59. 
convejing  to  purchaser  with  knowledge,  58. 
intention  to  remove  property,  60. 
removal  of  property,  61-64. 

by  a  partner,  61. 

to  pay  debt,  61,  62. 
•  when  enough  is  retained  to  pay  debts,  62-64. 

by  fraudulent  assignment,  60,  65,  66,  71,  73. 

with  preference,  65,  66. 
by  being  about  to  assign,  71. 
by  fraudulent  mortgages,  67. 

how  inferred,  68. 
by  conveyance,  69. 
by  simulated  sale,  69. 
animus  of  the  debtor,  70. 
purpose  to  hinder  and  delay  creditors,  71. 
indicated  by  interest  retained  by  the  debtor,  263. 
by  preference  to  creditors  where  inhibited,  263. 


725 


726  INDEX. 

The  references  are  to  sections. 

FRAUDULENTLY  CONTRACTING  THE  DEBT  — 
an  exceptional  ground,  73. 
when  part  honestly  contracted,  74. 
not  by  the  renewal  of  the  debt,  74. 
what  constitutes  fraudulent  contracting,  75. 

FRAUDULENTLY  INCURRING  THE  DEBT  — 
by  false  pretenses,  etc. ,  74. 

FRACTIONS  OF  A  DAY  (see  Day). 


G. 


GARNISHEE  (see  Assignment  Relative  to  Garnishment  ;  Charging  the 
Garnishee  ;  Corporations  as  Garnishees  ;  Custody  of  the  Law 
Relative  to  Garnishment:  Exemption  Relative  to  Attach- 
ment AND  Garnishment;  Garnishee's  Disclosure;  Garnishment 
as  to  Liability  op  Property  and  Credits;  Garnishment  Bond; 
Garnishment  in  Execution  ;  Judgment  in  Garnishment)  — 

may  pay  indorser  after  summons,  when,  386. 

his  garnishment  may  be  set  aside  on  motion,  when,  533.  ^ 

is  not  a  mere  witness,  537,  949,  9o0. 

is  personally  sued,  470-1. 

by  the  plaintiff  as  assumed  subrogee  of  defendant,  477-8. 

is  protected,  545. 

may  be  relieved  in  equity,  when,  953. 

may  move  to  dissolve  attachment,  when,  680. 

priority  of  garnishment,  807-813. 

guilty  of  laches,  934. 

may  defend  against  a  suit  by  tlie  attachment  defendant,  how,  951-4. 
by  pleading  in  abatement,  what,  951. 
bar,  what,  954-963. 

liable  to  defendant  if  he  has  paid  to  the  plaintiff  voluntarily,  959. 
surrendered  property  to  the  plaintiff  voluntarily,  959. 

held  liable  for  note  after  payment  under  order,  965. 

to  assignee  after  payment  for  not  disclosing  assignment,  966. 

may  plead  judgment  in  defense  of  note  suit  when  garnished  before 
notice  of  assignment,  966. 

is  not  liable  to  second  payment  when  not  in  fault,  966. 

is  liable  to  mortgagee  when  mortgage  was  not  disclosed,  967. 

is  estopped  from  pleading  payment,  by  his  collusion  with  garnishor, 
966. 

may  have  action  against  the  garnishor,  1036. 

GARNISHEE'S  DISCLOSURE  — 
not  to  criminate  himself,  505. 
how  made,  507-13. 


INDEX.  727 


The  references  are  to  sections. 

GARNISHEE'S  DISCLOSURE  (continued)  — 
in  writing,  507. 
orally,  where,  507. 
made  to  sheriff,  where,  508. 
personally,  oOS, 
responsively,  509,  513. 
on  information,  510. 

belief,  510. 
not  when  defendant  misnamed,  511. 
required  to  be  more  specific,  when,  513, 
taken  as  true,  514-19. 
presumed  true,  514. 
relative  to  fraud,  516. 
further  proof,  517. 
not  taken  as  confessed,  when,  518. 
relative  to  promissory  note,  519. 

debt  due  a  firm,  379. 
a  note  holder,  386. 
an  assignor,  419. 
stating  defenses  of  himself,  520-529. 

as  if  sued  by  defendant,  520-21. 

when  holding  defendant's  note  not  due,  533. 
stating  his  claim  for  damages,  528. 

and  pleading  offsets,  525, 
by  joint  garnishees,  526. 
claims  of  third  persons,  527-8. 
himself,  529. 
stating  defenses  for  absent  defendant,  530-538. 

what  should  be  stated,  530. 

not  technical  objections,  531. 

as  to  irregularities,  533. 
amendment  to,  533-8. 

for  what  cause,  533, 

liberally  allowed,  534. 

within  court's  discretion,  535. 

second  application  for,  536. 

upon  new  information,  538. 
effect  given  to,  537. 
final,  if  not  traversed,  539. 
traverse  of,  539-551. 

how  issue  made,  540. 

evidence,  541. 

burden  of  proof,  542,  544. 

qualified  admissions,  543. 

relative  to  assignment,  544. 

record  of  main  case,  546. 
effect  cf  payment  to  defendant  after  service,  547,  549. 


728  •  INDEX. 

The  refei^ences  ars  to  sections. 

GARNISHMENT,    AS   TO   LIABILITY  OF   PROPERTY  AND   CRED- 
ITS— 
of  property  and  debt  in  general.  356-391. 
of  property  in  garnishee's  hands,  356-3G1. 
held  by  right,  356. 

as  security,  not  liable,  856. 
temporarily,  not  liable,  356. 
subject  to  defendant,  357. 
when  defendant  cannot  recover,  357. 
with  privity,  358. 
not  of  land,  360. 
proceeds  of  land,  360,  368. 
for  rent,  when,  361. 
liability  of  credits,  362-4. 
payable  in  money,  363. 

chattels,  362. 
under  judgment,  363. 
due  at  time  of  summons,  363. 

answer,  363. 
not  due  but  certain,  363. 
for  which  check  given,  364. 
liability  not  of  trust  funds,  365-371. 

deposits  with  clerk  of  court,  when,  368. 
attorney  by  client,  368. 
agents  for  specific  purposes,  3()8. 
liability  of  money  deposited,  386,  367,  368. 
collected  for  others,  368.  ■ 
of  property  as  security,  368. 
of  excess  above  a  lien,  369,  870. 
not  when  obligation  conditional,  372-6. 

debt  payable  to  third  person,  375. 
of  judgment  debt,  376. 
of  partnership  property,  377-9. 
joint  debt,  379. 
promissory  notes,  380-6. 

of  non-resident  third  possessors,  387,  391 ,  392. 
of  firm,  through  resident  member.  390. 
of  corporation,  through  resident  agent,  390. 

chartered  in  two  states,  391,  392. 
not  of  non-resident  temporarily  in  the  state,  when,  891. 

common  carriers,  when,  891. 
of  prisoner's  effects,  410,  411. 
assigned  property,  see  Assignment  Relative  to  Garnishment. 

GARNISHMENT  BOND  — 
when  required,  483. 
action  on,  when  plaintiff  is  nonsuited,  1007. 


INDEX.  729 

The  references  are  to  sections. 

GARNISH]MENT  IN  EXECUTION  — 
in  general,  944-950. 
notice  of  should  contain,  what,  944. 
may  be  substituted  by  creditor's  bill,  wliere,  945. 
may  be  followed  by  suit  against  garnishee,  if  he  deny,  946. 
defense  by  garnishee,  947. 
against  railroad  company,  947. 
not  against  co-defendant,  when,  948. 
as  to  choses  in  action,  948. 
examination  of  garnishee,  949,  950. 

GROUNDS  FOR  ATTACHMENT  — 
in  general,  26- ("(5. 
non-residency,  82-43. 
absence  and  non-residency,  44-49, 
absconding,  50-56. 
concealing,  50-56. 

fraudulent  disposition  of  property,  57-73. 
exceptional,  73-76. 
stated  in  detail,  27,  28. 
inadequacy  of  ordinary  process,  26,  39,  48. 
related,  30. 
on  ex  jjarte  showing,  31,  43. 

GUARDIANS  — 

not  garnishable,  409. 

H. 

HEIRS  — 

not  liable  to  attachment  suit,  when,  43. 

HOMESTEAD  (see  Exemption  Relative  to  Attachment  and  Garnish- 
ment) — 
not  dedicated  after  attachment,  736. 

I. 

INDEMNITY  BOND  — 

in  general,  237-245. 

may  be  required,  when,  237. 

effect  as  to  damage  suit,  238. 

duty  of  officer,  without  the  bond,  239. 

common-law  right,  without  the  bond,  240. 

till  furnished,  officer  may  delay,  when,  341. 

not  delay,  when,  242. 
does  not  relieve  from  duty,  343. 
suit  upon,  245,  969,  976. 
as  to  sureties,  245. 


730  INDEX. 

The  references  are  to  sections, 
INFERENCE  — 

drawn  from  facts  proven,  46. 

as  to  fraud,  72. 
INJUNCTION  — 

against  garnishing  in  foreign  state,  743. 
IN  REM  (see  Prooeedings  in  Rem). 

INSOLVENCY  — 

of  debtor  relative  to  attachment,  295. 
INSURANCE  COMPANY  — 

not  garnishable  on  policy  of  life  insm'ance,  373, 

garnishable  for  loss  by  fire,  when,  374, 

its  agent  not  garnishable,  when,  387. 
INTENTION  — 

to  remove  property,  60. 

to  defraud  creditors,  72. 

to  remain  in  the  state,  37. 
i      out  of  the  state,  44. 
INTEREST  — 

when  chargeable  against  garnishee,  933-3. 
INTERMINGLED  GOODS  — 

in  general,  253. 

may  be  separated  by  the  attaching  officer,  309. 

INTERROGATORIES  TO  THE  GARNISHEE  — 
in  general,  487-491. 
their  character,  487. 
should  be  specific,  488. 
as  to  time,  490. 
as  to  amendment  after  answer,  491. 

return  after  service,  494. 
exceptions  to,  505-6. 
as  to  declarations  to  the  garnishee,  494. 

INTERVENTION  — 

when  unnecessary,  778-786. 

by  lienliolder,  781-3. 
when  interest  requires,  785,  798,  822. 

in  general  and  limited  proceedings  in  rem,  differentiated,  787-8. 
by  junior  attachers,  790-98. 

attachers  when  statutory,  790. 

not  to  expose  irregularities  in  senior's  attachment,  792,  805. 

how  answered,  793. 

how  maintained,  794. 

because  of  fraud,  795. 

to  defend  against  first  attachment,  when,  795. 
by  claimant,  816-826. 
must  be  ready  for  trial,  819. 


INDEX.  731 

The  references  are  to  sections. 

INTERVENTION  (continued)  — 

by  consignee,  822. 

by  statute  authorization,  832. 

by  assignee,  840. 

by  purcliaser,  848. 

on  what  evidence,  849. 
INVENTORY  — 

of  seized  crop,  285. 

J. 

JOINDER  OF  PLAINTIFFS  — 

not  if  each  has  a  separate  claim,  84. 
JOINT  DEBT  — 

when  garnishable,  379. 

JOINT  DEBTORS  — 
suit  against,  252. 

JUDGMENT  (see  Default;  Judgment  Nisi)— 
with  privilege  expressed,  893. 

implied,  893. 
confessed  —  effect  on  junior  attachments,  811 
as  to  excess  above  the  res,  894,  904. 
amended  nunc  pro  tunc,  894. 
general,  where,  894. 
personal  and  general,  895. 
satisfied,  894,  896. 

effect  on  the  forthcoming  bond,  897. 
perfecting  the  lien,  898. 
not  perfecting  the  lien,  899. 
formally  against  the  res,  where,  900. 
form,  relative  to  the  privilege,  893,  903. 
of  restoration,  903. 
appealed.  905-907. 
execution  of,  908-914. 

by  venditioni  exponas,  908-910. 

h J  fieri  facias,  911. 

confined  to  defendant's  interest,  913. 

as  to  partnership  property,  913. 

how  limited,  914. 
may  be  collaterally  attacked  if  statutory  requisites  have  been  neg- 
lected, 887. 
cannot  be  impeached  by  sheriff,  when,  971. 
in  rem  against  attached  property,  659. 
for  defendant  in  the  personal  suit,  917 

enables  him  to  claim  damages  for  wrongful  attachment,  917. 

is  equivalent  to  dissolution  of  attachment,  93. 
of  restoration,  918. 

to  claimant,  does  not  settle  his  title,  919. 


i-~>-J  INDEX. 

TJie  references  are  to  sections. 

JUDGMENT  (continued)  — 

inter  partes,  is  final  as  to  what  was  settled  by  it,  1023. 

in  rem  in  attachment,  is  final  as  to  the  defendant  who  owned  the  res, 

1025. 
of  nonsuit,  is  no  bar  to  a  suit  for  exemplary  damages,  1024. 
on  demurrer,  is  no  bar  to  a  suit  for  exemplary  damages,  1024. 

JUDGMENT  IN  GARNISHMENT  — 

after  judgment  in  attachment  against  defendant,  921. 

not  after  personal  judgment  only  against  defendant,  921. 

not  joint  against  both  garnishee  and  defendant,  921,  929. 

when  conditional,  921. 

reasons  for,  921,  922. 

must  recite  tlie  judgment  against  defendant,  922. 

amount  of,  923. 

specifically  stated,  925. 
as  to  property  held,  923. 
as  to  surplus,  923, 
as  to  irregularities,  924,  956,  957. 
how  affected  by  laches,  924. 
to  be  paid,  when,  925. 
wlien  void,  926,  928. 
when  voidable,  928. 

released,  when  judgment  against  defendant  is  reversed,  926. 
misnomer  in,  927. 

in  favor  of  defendant  virtually,  929. 
is  premature,  when,  930. 

and  may  be  set  aside,  930. 
is  released  by  defendant's  bond,  931. 
with  interest,  932,  933,  935. 
without  interest,  934,  936. 
includes  income  from  property  held,  932. 
with  costs,  937-9. 
when  costs  are  allowed  to  the  garnishee,  938,  940,  941. 

counsel  fee  is  allowed,  938,  941. 

compensation  is  allowed,  941. 
may  be  pleaded  in  abatement,  when,  951. 

bar,  when,  954-963. 

to  suit  on  note  assigned  without  notice,  966. 
will  not  protect  from  suit  by  mortgagee  if  the  mortgage  was  not  dis- 
closed, 967. 

JUDGMENT  NISI  — 

rendered   when  there  is   no  jurisdiction  to  render   final  judgment, 

622. 
bond  by  plaintiff  to  restore  within  a  year  and  a  day,  if,  884-6. 
the  debtor,  within  the  time,  may  give  bail,  and  defend,  883-6. 
under  the  custom  of  London,  881. 


INDEX, 

TJie  references  are  to  sections. 

JUDICIAL  SALE  (see  Purchaser)  — 

of  attached  property  is  without  warranty  of  title,  868. 

under  a  void  writ,  856. 

when  provoked  by  owners,  87L 

of  property  condemned  to  the  government,  "^T,'. 

how  affected  by  error  and  fraud,  873-4. 

JUNIOR  ATTACHMENTS  (see  Lien  of  Attachment). 

JURAT  — 

signed  by  officer,  108. 

JURISDICTION  — 
in  general,  596-654. 
degrees  of,  596. 
different  meanings  of,  597. 
exercised  ministerially,  when,  599. 
as  to  debt  in  attachment  cases,  600. 
as  to  remedy  by  attachment,  601. 
as  to  custody  of  property,  603-3. 
to  order  publication,  when,  604. 
to  hear  and  determine,  605,  864. 
over  the  debtor,  606-614. 

upon  service  or  appearance,  606. 
not  by  publication,  607. 
no  exception,  608-612. 
in  divorce  suit,  608-9. 

in  suit  where  the  claim  exceeds  the  res,  610. 
in  nominal  attachment,  611. 
not  over  the  debtor  because  over  his  property,  613,  614. 
over  the  debtor's  property,  615-624. 

seizing  and  holding  necessary  to,  615. 
seizure  not  statutory  notice,  616. 

notice  essential  to  jurisdiction  to  render  judgment,  617. 
in  general  proceedings  in  rem,  617-619,  887,  888. 
in  admiralty,  618. 

not  rendered  unnecessary  by  seizure,  619. 
to  sell  perishable  property,  620,  621. 
to  render  judgment  nisi,  622,  623,  881. 
exercise  of,  624. 

errors  in,  628. 
of  ancillary  suit,  90. 
as  to  the  amount  of  the  claim,  90. 
depends  upon  compliance  with  statute,  625-629. 
not  on  presumption  of  compliance,  625,  626. 
of  federal  courts,  89,  630-633. 
collateral  attack,  634,  639,  887,  888. 
in  ejectment  suits,  641. 


733 


734  INDEX. 

The  references  are  to  sections. 

JURISDICTION  (continued)  — 
special,  in  attachment,  685-643. 

in  both  superior  and  inferior  courts,  635, 

must  appear  of  record,  637. 
general  —  exercise  of,  638. 

service  or  publication  or  appearance  should  be  of  record,  639. 
recited  in  judgment,  when,  639. 
depends  on  record  showing  publication,  when,  6d0. 
as  to  county,  467. 
of  suits  in  different  counties,  643. 
within  territorial  limits,  644-653. 

as  to  person  and  property,  644,  648. 
property  when  debtor  absent,  645. 
of  foreign  courts,  646. 

records  assailable,  647. 
of  state  government,  649. 

limited  to  its  own  bounds,  651. 
of  federal  courts  as  to  foreign  judgments,  650. 

may  inquire  into  the  jurisdiction,  653. 
in  gai-nishment,  654. 
excepted  to,  by  garnishee,  503. 
exceptions  to,  in  general,  656-658. 

not  admitted  by  the  removal  of  the  case  to  another  court,  664. 
not  establislied  by  its  assertion  in  the  judgment,  860. 
as  between  the  plaintiff  and  an  intervener,  826. 
not  assured  to  the  purchaser  at  an  attachment  sale,  864. 
cannot  be  over  property  in  two  courts  at  once,  983. 
to  decide  question  of  possession,  986. 

K. 

KEEPER  — 

holds  under  the  sheriff,  554. 

dispensed  with,  by  order  of  court,  556. 

usually  appointed  to  keep  attached  goods,  561. 

receipts  to  the  sheriff  for  property  intrusted  to  him,  562. 

is  the  bailee  of  the  sheriff,  563,  568. 

has  no  possession  such  as  would  enable  him  to  dispose  of  the  property, 

564. 
abusing  his  trust,  565. 
relative  to  the  attachment  lien,  566. 
when  he  is  the  defendant's  employee,  569. 
when  the  defendant's  wife,  570. 
when  he  is  mortgagee  of  the  property  attached,  571. 
estopped  from  claiming,  572. 


INDEX.  735 

The  references  are  to  sections. 
L. 

LACHES  — 

of  the  defendant,  357. 

of  assignee,  431. 

of  garnishee,  924,'  967. 
LAND  — 

how  attached,  278-395,  303. 

should  be  described  in  attachment  return,  278-280. 

not  reached  by  garnishment,  360. 

recorded  sale  of,  as  to  effect  on  attachment,  850. 
as  notice,  851. 

knowledge  of  sale  without  record,  853. 

possession  given  without  record,  853. 

transferred  to  defeat  creditors,  854. 

deeded  in  trust,  854. 

deed  of  conveyance  void,  when,  855. 

is  not  presumably  damaged  by  attachment,  1011. 

when  sale  prevented  by  attachment,  damages  allowed,  1011, 

LANDLORD  — 

may  attach  for  rent,  where,  257-8. 

LETTER  — 

notice  by  mail  to  absent  debtor  is  not  service,  340. 

LEVY  (see  Attaching). 

LIABILITY  TO  ATTACHMENT  (see  Garnishment  as  to  Liability  of 
Property  and  Credits)  — 
in  general,  27,  246-275. 
of  property  owned  by  debtor,  247. 
possessed  by  debtor.  247, 
held  in  trust,  not  attachable,  247. 
controlled,  tliough  in  other  hands,  248. 
fraudulently  transferred,  249. 
in  partnership,  249-254. 

interest  of  a  member,  250. 
in  suit  against  a  partner,  250. 
firm,  251,  252. 
insolvent,  252. 
of  non-resident  partner,  253. 
of  joint  debtors,  252. 
in  common,  253. 
of  domestic  corporation,  252, 
indivisible,  253. 
intermingled,  253. 
of  married  woman,  254. 
interest  in  land,  281. 


736  INDEX. 

The  references  are  to  sections. 

LIABILITY  TO  ATTACHMENT  (continued)  — 
of  property  held  by  third  persons,  255. 

may  be  temporarily  detained,  255. 
not  directly  attachable,  255. 
when  ownership  doubtful,  256. 
in  transitu,  256,  267. 
held  by  lessee,  when  not,  257. 
when  fixtures  liable,  258. 
rolling  stock  of  railroad  companies,  258. 
for  property  assigned,  see  Assignment  Relative  to  Attachment. 
in  custody  of  the  law,  see  Custody  of  the  Law. 
consigned,  see  Consignment  of  Property. 

LIEN  OF  ATTACHMENT  — 

is  created  and  enforced  bj'  the  attachment  proceeding,  1,  157. 

in  what  way,  12. 

by  what  right,  12,  13. 

under  what  requirements,  15. 

by  attaching  notes  and  accounts  in  some  states,  385. 
is  specific  though  hypothetical  and  assumed,  16,  857. 
is  perfected  by  judgment,  17,  893-898,  900-1. 

retroacting  to  its  creation,  17,  18. 
does  not  dislodge  prior  liens,  18,  779-781,  786,  789,  838,  856. 
is  superior  to  a  lien  for  advances  not  recorded,  835. 
is  inferior  to  the  lien  of  a  creditor  holding  debtor's  property  in  pledge, 

835. 
is  unnecessary  when  the  creditor  has  a  conventional  lien,  19. 

is  secured  in  any  way,  20. 
is  exceptional  when  employed  in  collecting  secured  claims,  21,  22. 
is  strictly  limited  by  statute,  23. 

is  created  on  land  by  constructive  seizure  and  notice,  278-9,  281. 
is  not  created  by  attaching  land  sold  to  defeat  creditors,  if  not  fol- 
lowed by  other  proceedings,  854. 
is  not  created  in  suit  against  a  firm,  when,  890. 
dates  usually  from  the  levy,  560. 

in  some  states  from  time  of  registry,  560. 
lost  by  loss  of  possession  of  the  thing  attached,  566. 
preserved,  though  the  res  is  held  by  a  mortgagee  as  keeper,  571. 

though  defendant  holds  the  res,  under  the  sheriff,  574. 
how  affected  by  dissolution  bond,  765. 

assignment,  844. 
is  kept  alive  by  appeal,  906. 
does  not  affect  the  excess  of  value  of  the  res  over  the  amount  of  the 

judgment,  369,  370. 
as  to  ci'editors  of  partners,  422. 

is  not  affected  by  the  defendant  becoming  insolvent,  678. 
of  junior  attacher  is  created  by  laying  his  writ  on  the  first  seizure,  290, 
790. 


INDEX. 


737 


The  references  are  to  sections. 

LIEN  OF  ATTACHMENT  (continued)  — 
of  junior  attacher,  as  to  its  rank,  790. 

is  equal  to  the  senior's  in  some  states,  791. 
relates  back  from  judgment  to  levy  of  attachment,  799. 
ranks  usually  by  dates  of  levies,.  799,  801,  806. 
of  levies  on  the  same  day,  equal  in  some  states,  800,  803,  814-15. 
of  simultaneous  attachments,  814. 
as  to  priority  in  successive  levies,  803. 

of  service,  804. 

when  exemption  is  waived,  804. 

affecting  amendments,  805, 
of  garnishment,  807-813. 

takes  rank  in  the  order  of  service,  809. 

is  perfected  by  judgment,  810. 

is  affected  by  amendments,  how,  813. 

LIEN  OF  GARNISHMENT  (see  LiEX  of  Attachhent). 

M. 

MALICIOUS   ATTACHMENT  (see  Damages   Against   the   Attachinq 
Creditor). 

MARRIED  WOMAN  — 

her  domicile  that  of  her  husband,  38. 

liable  to  attachment  suit  when  doing  business  in  her  own  name,  254. 

as  sole  trader,  254. 

ma}^  be  garnished  in  a  suit  against  lier  husband,  949. 

MARSHAL  (see  Officer  Executing  Attachment)  — 

is  an  officer  of  his  district  rather  than  of  the  court,  208. 
may  be  sued  on  his  bond,  for  breach,  by  any  one  injured,  977. 
attaching  by  him  is  an  official  act,  and  a  breacli  of  the  bond,  if  wrong- 
ful, 978. 
liable  to  lienholder  for  dispossessing  Jiim,  980,  981,  987. 
liable  to  action  by  replevin,  983. 

MISNOMER  (see  Name). 

MORTGAGE  — 

lien,  relative  to  attachment,  829-839. 
unrecorded,  no  hindrance  to  attachment,  827. 

unless  known  to  plaintiff,  827-8. 
merely  contemplated,  is  no  hindrance  to  attachment,  829. 
as  to  presumption  of  notice,  830. 

of  goods  deemed  fraudulent  if  the  mortgagor  be  allowed  to  sell,  837. 
subject  to  contestation,  836. 

void,  if  mortgagor  still  allowed  to  sell  mortgaged  goods,  67. 
void,  837. 

consummated,  is  not  affected  by  subsequent  attachment,  838. 
47 


738  INDEX, 

The  references  are  to  sections. 

MORTGAGE  (continued)  — 

by  an  insolvent,  in  excess  of  the  debt  to  be  secured,  is  a  fraud  on  other 
creditors,  67. 

to  a  creditor  in  excess  with  advances  by  him  to  the  debtor,  is  fraud- 
ulent, 67. 

allowable  under  cii-cu Distances  stated,  67. 

without  consideration,  68. 

by  a  debtor  to  secure  his  partner,  251. 

held  by  an  attorney  who  claims  a  lien,  523. 

foreclosed  in  attachment  proceeding,  839. 

MORTGAGEE  (see  Mortgage)  — 

in  possession,  not  divested  by  attachment,  234-6,  255-6,  786. 
may  recover  of  sheriff  for  dispossessing  him,  974,  981. 
need  not  intervene  in  an  attachment  suit,  when,  781-4. 

MORTGAGOR  (see  Mortgage)  — 

may  be  sued  jointly  with  another,  when,  370. 

after  condition  broken,  375. 

may  plead  exemption,  when,  727. 
MUNICIPAL  CORPORATION  (see  Corporations  as  Garnishees). 

N. 

NAME  (see  Signature)  — 

may  be  corrected  in  a  petition,  86. 
omission  of,  140,  141,  223. 

of  guardian  substituted  for  that  of  minor  in  petition,  87. 
when  erroneous  but  not  misleading,  927. 

not  to  be  corrected  in  affidavit  and  bond,  by  the  garnishee,  if  defend- 
ant be  present,  927. 

NATIONAL  BANK  — 

not  liable  to  attachment  before  judgment,  231. 
insolvent,  230,  231. 

NEWSPAPER  — 

publishing  notice  to  absentee,  346 

NOMINAL  ATTACHMENTS,  611.     See  JURISDICTION. 

NON-RESIDENCY  — 

a  general  ground  for  attachment,  32,  49. 
a  constitutional  ground,  32. 
meaning  of  the  term,  33,  34. 
temporary  presence  of  debtor,  35,  41,  44. 
a  question  of  fact,  36,  44. 
intention,  as  to,  37,  44. 
domicile,  38,  39. 
of  wife,  38. 

relative  to  citizenship,  39. 
business  place,  40. 


INDEX.  739 

The  references  are  to  sections. 

NON-RESIDENCY  (continued)  — 
of  decedent,  43. 
inferred  from  absence,  when,  44,  45. 

other  facts,  46. 
removal  from  the  state,  44. 
absence  of  fixed  abode,  47. 
as  to  non-resident  partner  when  resident  served,  379. 

NOTE  (see  Promissory  Note). 

NOTICE  (see  Publication  Notice)  — 

in  an  ancillary  proceeding,  199,  200. 

to  the  tenant  of  attached  land,  279. 

to  the  person  in  charge  of  a  growing  crop,  in  attaching  it,  285. 

by  posting,  280. 

to  the  principal  defendant  in  garnishment  proceedings,  486. 

to  the  garnishee,  when  the  cause  is  removed,  546. 

when  not  questionable,  662. 

relative  to  mortgage,  827-839. 

essential  to  jurisdiction,  350,  596-634. 

cannot  be  questioned  by  defendant  after  appearance,  662,  666,  916. 

to  plaintiff,  of  motion  to  dissolve,  685. 

of  unrecorded  mortgages,  827,  828. 

presumed,  as  to  attachment,  when  mortgage  taken  subsequently,  830. 

of  lien  for  advances  should  be  given  to  attaching  creditor,  835. 

of  record,  851-853. 

as  affecting  liens,  856,  857. 

to  all  persons,  in  general  proceedings  against  a  thing,  880. 

must  precede  default,  880. 

by  proclamation,  881. 

essential  in  proceedings  in  rem,  887,  888. 

of  garnishment  in  execution,  944, 

left  at  domicile  of  garnishee,  958. 
NULLITY  — 

of  judgment,  874. 

of  sale,  874. 

o. 

OATH  (see  Affidavit  for  Attachment). 
OFFICER  EXECUTING  ATTACHMENT  — 

must  be  authorized  by  valid  writ  to  make  levy,  212. 

need  not  have  the  writ  literally  in  hand  when  making  levj',  212. 

is  protected  by  the  writ  when  it  is  valid,  232-6. 
indemnity  bond,  237-245. 

given  to  sheriff,  though  writ  issued  to  "  an}- constable,"  237. 

his  duty  in  attaching,  292-308. 

should  heed  notice  of  exemption,  724-5. 

should  disregard  it  if  known  to  be  unfounded,  726. 


740  INDEX. 

The  references  are  to  sections. 

OFFICER  EXECUTING  ATTACHMENT  (continued)  — 
his  authority  to  sell,  875. 

may  be  sued  on  his  official  bond  for  attaching  without  authority,  968. 
who  has  released  attached  property  cannot  defend  his  act  by  impeach- 
ing the  attachment  judgment,  971. 
may  defend  his  act  by  showing  that  the  defendant  was  not  the 
owner,  971. 
as  constable,  renders  the  sureties  on  his  bond  liable  for  his  tortious  at- 
taching, 979. 
is  entitled  to  costs  out  of  property  attached  and  judged  liable,  1035. 

OFFICERS  (see  Public  Officers). 

OFFSETS  — 

may  be  pleaded  by  garnishee,  525. 

OMISSION  — 

of  unnecessary  words  in  affidavit  is  harmless,  140. 

of  unconstitutional  requirements  of  statute  does  not  invalidate  affi- 
davit, 140. 

of  a  name,  wholly  or  in  part,  140,  141,  223. 

of  date,  how  supplied,  141. 

in  affidavit,  may  be  cured  by  the  petition,  when,  147. 

of  statutory  requisites  is  fatal,  148,  213. 
ORDER  OF  PUBLICATION  — 

form  should  be  according  to  statute,  340. 

made  when  sheriff  returns  that  defendant  is  not  found,  339. 

should  inform  the  absentee  that  his  property  is  attached,  339. 

may  be  published  as  notice.  340. 

may  be  denied,  when,  323. 

as  to  description  of  attached  property,  340. 

P. 

PARTIES  — 

interested,  may  be  cited,  824. 

PARTNER  — 

as  creditor,  377. 

as  debtor,  378. 

surviving,  doing  business  in  firm  name,  379. 

may  move  to  dismiss  attachment,  706. 
PARTNERSHIP  — 

as  ci-'editor,  377. 

when  some  members  of  the  firm  are  non-residents,  379,  390. 

names  in  attachment  writ,  215. 

suit  against,  when  one  partner  has  absconded,  53. 

when  one  partner  has  fraudulently  sent  property  of  his  own  out  of 
the  state,  to  defraud,  61. 

the  interest  in,  of  a  partner,  may  be  attached,  250. 

may  be  sued  on  grounds  applicable  to  all  the  members,  351. 


INDEX.  741 

Tlie  references  are  to  sections. 

PARTNERSHIP  (continued)  — 

property,  as  to  seizure  for  debt  of  a  member,  251. 

attached  as  wholly  belonging  to  the  partner  defendant,  251. 
as  to  non-resident  partner,  253. 

PARTNERSHIP  PROPERTY  — 
when  the  firm  is  bankrupt,  843. 

has  no  lien  created  upon  it  by  levy  on  a  partner's  property,  890. 
assigned  by  a  partner  and  assignment  ratified  by  the  firm,  845. 
not  attachable  in  a  suit  against  a  partner,  975. 
in  execution,  918. 

PATENT  ERRORS  (see  Quashing  for  Patent  Errors). 
PENSION  — 

not  attachable  before  payment,  739,  740. 

PERISHABLE  PROPERTY  — 

such  as  fruit,  vegetables,  fish,  meat,  etc.,  285. 
sold  by  order  of  court,  588,  620. 

on  application,  589. 

after  the  plaintiff's  death,  285. 
its  proceeds,  the  res  of  the  suit,  590. 
rights  of  the  defendant  protected,  590-2. 
the  court,  as  judicial  custodian,  orders  the  sale,  588. 

PETITION  — 

in  general,  77-93. 

form,  77. 

prayer,  77. 

essentials,  78,  81. 

should  agree  with  aflfidavit,  79,  82. 

how  one  aids  the  other,  80. 

when  a  substitute  for  the  aflSdavit,  81,  82,  93, 

variance,  S3. 

amended,  when,  84. 

as  to  cause  of  action,  85. 
clerical  errors,  86. 
parties,  87. 

as  to  rights  of  defendant,  88-91. 
when  the  court  has  jurisdiction,  89. 
under  federal  statute,  89. 
as  to  personal  suit,  90. 
in  suit  by  surety,  91. 
when  filed,  92. 

basis  for  successive  attachments,  93. 
in  suit  for  dauiages  for  wrongful  attachment  should  aver  want  of 
statutory  grounds,  1013. 
malicious  attachment,  what  should  be  alleged,  1018. 
on  attachment  bond,  what  should  be  alleged,  1007. 
must  contain  averments  of  the  costs,  fees  and  expenses  claimed  as 
damages,  1027. 


742  INDEX. 

The  references  are  to  sections. 

PLEDGES  TO  RESTORE  (see  Judgment  Nisi)  — 
given  by  plaintiff  under  judgment  not  final,  206. 

POSSESSION  (see  Custody  of  the  Law  ;  Jurisdiction  ;  Keeper). 

PRAYER  FOR  WRIT  OF  ATTACHMENT,  77. 

PREFERENCE  TO  CREDITORS  — 
is  fraud  in  some  states,  263. 
by  collusion,  is  fraud,  846. 

PRESCRIPTION  — 

pleaded  by  general  appearer,  661. 

PRIORITY  (see  Lien)  — 

of  levying  attachment,  799-806. 
in  service  of  the  writ,  294. 

where  priority  is  in  the  order  of  the  delivery  of  writs  to  the  sheriff,  98, 
first  levy  will  not  give  priority  if  petition  has  not  been  filed,  93. 
in  distribution  of  proceeds  of  sale,  915,  916. 
of  garnishment,  807-813. 

maintained  by  first  attacher  by  amending  petition  after  another  cred- 
itor had  created  a  lien,  91. 

PRISONER'S  EFFECTS  — 

whether  the  officer  holding  them  may  be  garnished,  310,  311. 

PRIVIES  — 

bound  by  the  judgment,  860. 

PRIVILEGE  — 

adjudged  upon  attached  property,  893-904. 

PRIVITY  — 

of  interest,  358. 
of  contract,  358. 

PROBABLE  CAUSE  (see  Damages  Against  Attaching  Creditor). 

PROCEEDINGS  IN  REM  — 

in  attachment  suits  personal  in  form,  5-8. 

against  what  is  attached  in  the  garnishee's  hands,  9,  479. 

limited  to  the  debtor's  interest,  10. 

and  general  differentiated,  10,  11,  867. 
general,  are  against  a  specific  thing,  111. 
are  not  to  declare  personal  status,  11,  608-9. 
as  to  description  of  seized  property  in  the  notice,  340. 
require  notice,  345,  347. 

in  which  seizure  Is  notice  to  the  person  divested,  in  a  limited  sense,. 
347,  616. 
presumptively,  but  not  in  attachment  cases,  348,  625-9. 
require  that  notice  be  given,  to  sustain  the  right  to  render  judgment,. 

617.  632. 
can  be  against  onlv  what  is  in  court,  554,  594-5, 


INDEX.  743 

Tlie  references  are  to  sections. 

PROCEEDINGS  IN  REM  (continued)  — 

how  affected  by  the  bonding  of  the  res,  767. 

general,  and  prosecuted  to  judgment,  conclude  non-appearing  lien- 
holders,  787-9. 

in  which  the  claimant  is  an  actor,  768. 

limited,  and  prosecuted  to  judgment,  conclude  only  the  notified  owner, 
789,  867,  1025. 

general,  by  libelant  to  have  property  condemned,  873. 
who  becomes  owner  and  sells  as  owner,  872. 
resulting  in  judgment  by  default  against  all  persons,  880. 

limited,  can  result  in  the  default  only  of  the  person  or  persons  desig- 
nated in  the  pleadings,  880. 

held,  judgment  open  to  collateral  attack  for  want  of  notice,  887. 

general,  may  be  under  state  law,  991. 

caimot  be  instituted  in  a  federal  court  against  property  attached  in  a 
state  court,  983. 

by  attachment,  being  limited,  do  not  affect  lien-holders,  989. 

PROCEEDS  (see  DisTRiBunoN  of  Proceeds;  Perishable  Property). 

PROCESS  (see  Summons;  Writ  of  Attachment)  — 

ordinary  being  inadequate,  attachment  allowed,  26,  29,  53. 
avoided  by  the  debtor,  a  ground  for  attaching,  50,  51. 
mesne,  illustrated  by  attachment,  984. 
final,  illustrated  by  execution,  984. 
against  the  debtor  personally,  197-203. 
against  the  debtor's  property,  204-236. 

PROCLAMATION  — 

required  before  default,  206. 

PROPERTY  ATTACHABLE  (see  Liability  to  Attachment). 

PROMISSORY  NOTE  — 

when  levied  upon  and  taken  into  possession  by  the  officer,  274-5,  385, 

when  reached  by  garnishing  the  maker,  381,  519. 

when  not  reached  by  garnishing  the  makei',  380,  883-5. 

paid  under  garnishment,  381. 

when  not  transferable,  384. 

held  by  depositary,  385. 

impounded  by  attachment,  385. 
^  novated,  386. 

not  due  and  held  by  the  garnishee  as  agent  of  the  defendant,  522. 

owned  by  the  debtor's  wife,  275, 

when  collectible  of  garnishee  by  second  indorsee  after  payment  to  gar- 
nishor, 965. 

may  be  defended  against,  by  maker's  pleading  judgment  in  garnish- 
ment before  notice  of  assignment,  966. 

PROTECTION   OF  THE   OFFICER   (see    Indemnity    Bond;   Writ   of 
Attachment). 


T44 


INDEX. 


The  references  are  to  sections. 

PUBLICATION  NOTICE  — 
in  general,  339-355. 
order  for,  339. 

form  of,  339,  340. 

when  issued,  339.  i 

published  as  notice,  when,  340. 
description  of  property  attached,  246. 
contents,  341. 

distinguished  from  summons,  343. 
not  constructive  service,  343-5. 
offers  "  day  in  court,"  344. 
required  by  statute,  345,  847-8. 
how  published,  346. 

not  rendered  unnecessary  by  seizure,  347,  612,  616. 
sufficient,  when,  349. 
slightly  defective,  349. 
not  amendable  to  obtain  jurisdiction,  349. 
defects  waived  by  appearance,  916. 
within  the  time  stated  in  the  order,  350. 
jurisdictional,  350,  596-634. 
must  be  of  record,  351-3,  637,  639,  040,  646. 
no  effect  without  levy,  354. 
different  from  summons,  355. 

essential  to  complete  jurisdiction,  596,  604,  617-624,  629. 
is  not  a  substitute  for  service,  607-611,  6l8. 
necessary  in  garnishment,  486,  654. 

PUBLIC  OFFICERS  — 

not  garnishable,  428-443. 

PURCHASE  — 

attachment  considered  as  a  purchase,  853. 

PURCHASERS  — 

in  general,  848-875. 

buying  before  levy  of  attachment,  848-855. 
may  intervene  to  claim,  848. 
must  prove  his  right,  849. 

by  recorded  deed,  850,  853. 
the  object  of  the  record  of  sale,  851. 
knowledge  of  sale  by  attaching  creditor,  853. 
attachment  as  purchase,  853. 
equitable  title,  853. 
fraudulent  conveyance,  854. 
purchase,  424,  855. 

as  to  the  person  defrauded,  855. 
buying  before  amendment  of  attachment,  defeats,  856-863. 
lien  created,  856-8. 
illustrated,  859-862. 


INDEX.  T45 

The  references  are  to  sections. 

PURCHASERS  (continued)  — 

buying  at  attachment  sale,  863-867. 

when  statute  has  been  followed,  863. 
must  see  to  the  jurisdiction,  864. 
when  judgment  may  be  attacked,  865-6. 
when  action  against  property  in  general,  867. 

limited,  867. 
cannot  have  attachment  set  aside  as  a  cloud  upon  his  title,  when, 

976. 
not  warranted,  as  to  title,  868-870. 
how  far  protected,  869,  870. 
falsely  induced  to  buy,  870. 
at  sales  provoked  by  creditors,  871. 
owners,  871. 

by  the  government,  as  owner,  873. 
how  affected  by  error  and  fraud,  873. 
when  sale  is  null,  874. 

as  to  the  authority  of  the  selling  officer,  875. 
as  to  stipulation  of  warranty,  876. 
as  to  damages,  877,  976. 
as  to  cloud  upon  his  title,  976. 


Q. 


QUASHING  FOR  PATENT  ERRORS  — 
appeai-ance  for,  556. 
court's  authority,  672. 

to  take  application  in  chambers,  673. 
rule  to  dissolve,  678. 

new  evidence  inadmissible,  673. 

as  to  part  of  attached  property,  673. 
not  for  clerical  errors,  when,  673. 
motion  by  defendant,  674. 

verified,  when,  674. 
not  if  defendant  has  assigned,  674. 

agreed  to  sale,  674. 

has  no  right  to  possession,  674. 
motion  by  surety,  675. 

anyone  interested,  676. 

subsequent  attacher,  when,  677. 

intervenor,  when,  677,  681. 

assignee,  678. 

not  by  lien-holder,  679. 

garnishee,  when,  680. 
not  because  defendant  is  insolvent,  678. 
on  the  judge's  motion,  682. 


746  INDEX. 

Tlie  references  are  to  sections. 

QUASHING  FOR  PATENT  ERRORS  (continued)  — 
on  motion  of  the  defendant,  686. 
for  defects  of  petition,  687, 
for  want  of  statutory  authorization,  687, 
for  defects  of  summons,  688. 
affidavit,  689, 

for  uncertainty,  690. 
bond  for  attachment,  691-4. 
writ,  695. 
levy,  696,  697. 
return,  697. 
for  disregard  of  statute,  698. 
after  motion,  amendments  allowed,  when,  699. 
on  evidence  beyond  the  record,  see  Dissolution  on  Evidence,  700-710. 

R. 

RAILROAD  COMPANY  (see  CoivraoN  Carrier). 
REAL  ESTATE  (see  Land). 
RECEIPTOR  (see  Keeper). 

RECEIVER  — 

not  appointed  to  aid  attachment,  where,  103. 

as  custodian  of  attached  property,  400,  577,  578. 

when  creditors  cannot  oppose  his  appointment,  847. 

when  his  appointment  is  void,  263, 

of  partnership  property,  378. 

for  foreign  corporation,  468, 
RECONVENTION  (see  Damages  Against  the  Attaching  Creditor). 

RECORD  — 

attachment  affidavit  is  part  of,  110. 

should  show  notice  to  the  debtor  in  attachment,  351-353,  637-640,  046, 
851-853. 

of  principal  case  in  traverse  of  garnishee's  answer,  546, 

as  to  mortgages,  827-839. 

of  assignment,  265. 

RECOUPMENT  (see  Reconvention). 

REDEMPTION  RIGHT  — 

of  mortgagor  may  be  attached,  974. 

RELEASE  —  ' 

of  attachment  by  the  plaintiff,  470. 
of  part  of  attached  property,  831. 
REMOVAL  — 

of  cause  to  federal  court  by  an  intervenor,  826. 
is  no  admission  of  jurisdiction,  664. 
relative  to  garnishment,  473. 


INDEX.  747 

The  references  are  to  sections. 

REMOVAL  (continued)  — 

of  the  debtor  from  state  or  county,  53-55. 

to  avoid  creditors,  55. 
of  property  from  the  state  by  debtor,  27,  61-63. 

into  the  state,  to  defeat  creditors,  an  exceptional  ground  for  at' 
tachment,  28. 
RENT  — 

attached,  when,  146. 

to  be  accounted  for  by  one  evicted  from  real  property,  877. 

REPLEVIN  — 

by  owner  of  attached  goods,  823. 

by  defendant  precludes  denial  of  service,  664. 

does  not  lie,  by  an  intervener,  against  the  sheritr  after  judgment 
against  him,  976. 

lies,  by  third  person,  to  recover  pi-operty  wrongly  attached,  982. 

must  be  in  the  court  holding  the  attached  property,  982-4,  987. 

is  the  usual  resort  in  the  state  courts  to  regain  attached  property,  988. 

is  not  allowed  to  sureties  on  forthcoming  bond  against  officer  for  levy- 
ing execution,  when,  992. 

REPLEVY  BOND  — 

differs  from  forthcoming  bond,  how,  760. 

RES  JUDICATA  (see  Judgment;  Jurisdiction)  — 

in  attachment  judgment  depends  on  compliance  with  statute,  860-62, 

887,  888. 

RESTORATION  — 
order  for,  903. 

is  the  right  of  the  successful  defendant,  918, 
to  claimant,  does  not  affirm  his  title,  919. 

RETROACTION  — 

from  judgment  to  levy  of  attachment  as  to  legality  of  the  lien,  17,  18, 
799,  898. 
time  of  service  upon  the  garnishee,  18. 
of  the  recording  of  a  deed  to  the  date  of  the  contract,  850. 
does  not  affect  attachment  lien,  850. 

RETURN  — 

to  service  of  interrogatories  on  garnishee,  494. 
as  to  time  of  service,  496. 
may  be  set  aside,  when,  498. 

RETURN  TO  WRIT  OF  ATTACHMENT  — 
to  the  court  whence  it  emanated,  214. 
should  show  whether  it  has  been  executed,  312-317. 

how  it  was  executed,  312,  313. 

that  defendant's  property  has  been  attached,  314-17. 

the  time  when  the  lien  began,  801, 


748  INDEX. 

The  references  are  to  sections. 

RETURN  TO  WRIT  OF  ATTACHMENT  (continued)  — 
should  describe  what  is  attached,  278-79,  31G-321. 

water-craft,  how,  318. 

store-goods,  how,  319. 

with  certainty,  320. 
should  report  the  value  of  attached  property,  when,  321. 
as  to  the  requisites,  in  general,  322-331, 
on  whom  served,  322-3. 
presumed  correct,  323. 
showing  copy  left,  324. 

exact  time  of  levy,  325, 
on  or  before  day  specified  in  the  writ,  326. 
when  unnecessary,  326. 
indorsement  on,  as  evidence,  326. 
where  lodged,  327, 

as  to  county,  327. 
by  officer  who  did  not  make  the  levy,  328. 
signed  by  officer,  329. 
when  service  not  effected,  330. 
•    to  second  attachment,  331. 
amendments  to,  332-338, 

before  filing,  332. 

after  filing,  332. 

not  after  judgment,  333. 

presumption  favors  return,  334. 

omitted  facts  not  presumed,  335. 
proves  what  was  attached,  1014. 
when  conclusive,  336. 
not  contradicted  by  parol  evidence,  337. 
may  be  contradicted,  when,  338. 
that  defendant  was  not  found,  339. 
showing  levy  upon  land,  in  general,  278-295. 
necessary  to  the  completion  of  levy  upon  land,  278-280. 
should  describe  the  land  attached,  278-9. 
should  report  notice  to  the  tenant,  279,  324. 

copy  left  with  the  tenant  or  person  in  possession,  303. 

who  is  the  owner,  280. 

that  advertisement  has  been  posted,  if  so,  280. 
cannot  be  made  after  the  expiration  of  the  writ,  295. 

s. 

SALARIES  — 

of  public  officers  generally  exempt  from  attachment  and  garnishment, 
441-2. 
SALE  (see  Purchaser)  — 

when  treated  as  an  assignment,  263. 
of  absent  debtor's  property  by  trustees,  882. 
auditors,  883. 


INDEX.  749 

The  references  are  to  sections. 

SALE  (continued)  — 

after  a  year  and  a  day,  884-5. 

after  six  months,  884. 

after  the  statutory  delay,  886. 

order,  after  judgment,  to  sell,  908-911. 

may  be  under  general  execution  if  judgment  be  personal,  912. 

must  be  confined  to  attached  property  if  judgment  be  not  personal, 

912. 
of  partnership  property,  913. 
may  be  set  aside  for  fraud,  913. 

when  judgment  is  joint  against  defendant  and  garnishee,  929. 
limited  to  sufficient  quantity,  914. 

the  amount  of  the  judgment  agaii—t  garnishee  when  execution  is 
against  him,  929. 
how  advertised,  with  description  of  property,  914. 
confirmed  by  the  court,  914,  916. 
failing,  effect  on  the  attachment,  918,  946. 
of  the  net  income  of  a  railroad  company,  948. 
not  by  execution  against  receiver,  but  court  orders  payment,  948. 

SCHOOL  DISTRICT  — 
not  garnishable,  488. 

SEAL  — 

to  attachment  bond,  172. 

of  wrong  court  to  attachment  writ,  224. 

SECRETING  — 

by  the  debtor  to  avoid  process,  54. 
of  his  property,  57,  59. 
SEIZURE  (see  Attaching  ;  Jukisdiction  ;  Notice). 
SERVICE  (see  Summons  ;  Writ  of  Attachment). 
SHERIFF  (see  Officer  Executing  Attachment)  — 

gives  his  official  bond  to  insure  performance  of  his  duties,  977. 

cannot  impeach  judgment  when    defending  for    releasing  attached 
property,  971. 

may  defend  suit  for  releasing  by  showing  that  defendant  was  not  the 
owner,  971. 

cannot  defend  by  pleading  the  fault  of  his  deputy,  971. 

is  not  liable  to  plaintiff  when  misled  by  him,  971. 

must  sue  garnishee  for  unpaid  debt,  where,  972. 

is  not  liable  to  replevin  suit  by  an  unsuccessful  intervenor,  976. 
for  fees  and  expenses  of  defendant,  when,  971. 

is  liable  to  mortgagee  for  dispossessing  him,  974,  981. 
SHERIFF'S  BOND  (see  Officer  Executing  Attachment). 
SIGNATURE  (see  Name)  — 

of  affiant,  108, 

of  officer  to  jurat,  108. 

of  one  plaintiff  omitted  when  there  are  two  or  more  plaintiffs,  141. 


750  INDEX. 

The  references  are  to  sections, 

SIGNATURE  (continued)  — 

of  plaintiff  to  attacliment  bond,  183. 
of  surety  to  attachment  bond,  186. 

by  firm  name,  187. 
of  officer  to  attacliment  return,  329. 

SIMULTANEOUS  SERVICE  — 

when  two  or  more  writs  are  served  at  once,  800. 
garnishments  are  made  together,  807. 
SITUS  — 

of  a  debt,  744-5. 

of  sliares  in  stock  corporations,  459,  464-8. 

not  affected  by  corporation's  doing  business  in  several  places,  459. 
determines  where  they  are  attachable,  464. 
may  be  reached  by  garnishment,  405. 

SOLE  TRADER  — 

though  a  wife,  is  liable  to  attachment  suit,  254. 

may  be  garnished  by  the  firm  name  assumed  by  him,  379. 

STAKE-HOLDER  — 

is  a  term  applied  to  a  garnishee,  476,  583. 

may  be  garnished  in  a  suit  against  either  of  the  persons  betting,  374. 

STATE  — 

is  not  garnishable,  428-432. 

officers  are  not  garnishable  as  such,  428-432.  ^ 

STATUTES  (see  Construction  of  Statutes)  — 

nearly  uniform  in  main  provisions  as  to  attachment,  1,  32,  50,  57,  199. 

exceptional,  1,  22,  73,  76,  101. 

prescribe  the  conditions  in  authorizing  the  remedy,  26-31. 

employ  different  terms  to  designate  non-residents,  33,  34. 

limited  to  debtor,  not  extended  to  his  executor,  etc.,  43. 

how  qualifying  "absconding  debtor,"  51. 

vague  as  to  the  phrase  "  about  to  abscond,"  56. 

differ  as  to  preference  given  to  creditors,  65. 

federal,  as  to  amendments,  89. 

limiting  jurisdiction  to  certain  amount  of  debt,  90. 

relative  to  equity  in  aid  of  attachment,  103. 

must  be  followed  in  laying  attachments,  112,  116,  122,  698. 

as  to  counter-claims,  121. 

prescribing  forms,  129,  160,  750. 

as  to  alternate  allegations,  135-7. 

fixing  amount  of  attachment  bond,  175. 

relative  to  personal  service,  199. 

authorizing  clerk  of  court  to  issue  writs,  210,  1004. 

as  to  issuance  of  attachment  on  Sunday,  217. 

as  to  national  banks,  231. 

as  to  choses  in  action,  275. 


I^^)EX.  Y51 

The  references  are  to  sections. 

STATUTES  (continued)  — 

conferring  special  jurisdiction,  627,  629. 
of  states  binding  on  federal  courts,  630-632. 
prescribing  what  shall  be  evidenced  by  court  record,  639,  640. 
void,  if  authorizing  extra-territorial  jurisdiction,  651. 
BB  to  exemption  relative  to  attachment,  729,  730,  745. 
authorizing  junior  attachers  to  intervene  in  first  suit,  790. 
sale  -of  attached  property  by  trustees,  883. 
auditors,  882. 
requiring  a  "stay  order"  in  attachment  judgment,  885,  886. 
authorizing  general  proceedings  against  property  in  state  courts,  990, 
991. 
reconvention,  995. 
STAY  ORDER  — 

in  insolvent  proceedings,  as  to  attachment-lien's  enforcement,  844. 

upon  judgment  for  debt  when  it  is  not  due,  98. 

upon  judgment  nisi,  83-85,  884-886. 

in  judgment  against  an  unnotified  absentee,  where,  885,  886. 

when  insolvency  proceedings  are  pending,  678. 

STOCKS  IN  CORPORATIONS  — 

in  general,  457,  45S,  464-468. 

how  attached,  291,  457. 

held  in  trust,  458. 

situs  of  shares,  459,  464-468. 

efifect  of  notice  as  to  garnishment,  458. 
SUBROGATION  — 

of  the  creditor  to  the  debtor's  claim,  477,  478. 
SUMMONS  — 

in  general,  197-203. 

in  ordinary  form,  197. 

may  cure  defect  of  writ,  how,  198. 

unnecessary,  when,  198. 

seizure  no  substitute  for,  198. 

personal,  199. 

may  be  made  after  the  writ  of  attachment  has  been  issued,  53. 

before  le\y,  199. 

after  levy,  when,  199. 

need  not  be  in  both  personal  and  ancillary  action,  199. 

not  substituted  by  writ,  200,  201. 

directed  to  the  defendant,  200. 

amended  nunc  j^ro  tunc,  when,  200. 

relative  to  attachment,  201. 

presumption  as  to  service,  325. 

as  to  time  for  appearance,  202,  295. 

returned  erroneously,  203. 

issued  with  the  writ,  204. 

waiver  of,  658. 


T52  isDEx. 

The  references  are  to  sections. 

SUMMONS  (continued)  — 

defects  of,  ground  for  motion  to  dissolve,  688. 

defects  of  service  of,  ground  for  motion  to  dissolve,  688. 

of  corporation,  in  garnishment,  444. 

SUNDAY  (see  Day)  — 

attachments  not  issued  on,  217. 

not  counted  among  the  days  of  time  for  appearance,  when,  295. 

SUPERSEDEAS  (see  Appeal). 

SURETY  — 

may  move  to  dissolve  attachment,  when,  675. 

on  indemnity  bond,  how  bound,  245. 

on  attachment  bond,  as  to  amendments  to  the  pleadings,  91. 

on  sheriff's  bond,  liable  to  damages,  when,  310,  979. 

on  forthcoming  bond,  liable  when,  758. 

not  liable,  when,  757. 

liability  for  goods  destroyed,  746. 

must  pay  value,  when,  759,  760. 

cannot  replevy,  when,  992. 
on  dissolution  bond,  how  bound,  763,  770. 

may  be  a  claimant,  where,  825. 

how  affected  by  principal's  bankruptcy,  771. 

how  case  affected  by  surety's  faihire,  772. 

when  bond  is  invalid,  773. 

when  pleadings  are  changed,  774-6. 

when  deemed  a  party»  777. 

how  affected  by  mistake  in  the  bond,  777. 

how  affected  by  subsequent  judgment  that  attachment  was  void, 
717. 
on  constable's  bond  liable  for  tortious  taking  under  the  writ,  979. 

SURRENDER  (see  Assignment). 

SURVIVING  PARTNER  — 

may  treat  firm  assets  as  his  own,  when,  72. 

as  to  the  garnishment  of  his  late  firm's  debtors,  379. 

T. 

TERRITORIAL  LIMITS  (see  Jurisdiction). 

TICKET  AGENT  — 

not  garnishable  as  the  servant  of  a  corporation,  455. 

TORT  — 

claim  for,  not  cause  of  attachment  action  unless  made  such  by  statute, 
102. 
unless  particulars  be  stated  in  the  affidavit,  when,  126. 

TOWNSHIP  — 

as  to  garnishment,  437. 


INDEX.  753 

The  references  are  to  sections. 

TRAVERSE  OF  ATTACHMENT  (see  Dissolution  op  Attachment). 

TRESPASS  — 

by  attaching  firm's  property  for  a  member's  debt,  251. 
-without  authority,  968,  987. 
exempt  property,  308. 

not  when  a  second  levy  is  laid  on  the  first,  308. 
not  when  officer  obeys  a  valid  order,  300,  308-9. 
should  not  be  committed.  299. 
when  excusable,  306. 

TRICKERY  — 

invalidates  attachment,  when,  301. 

TRUSTEE  — 

of  naked  trust,  366. 

under  deed  of  trust,  401. 

of  absconding  debtor's  property,  882-8. 

TRUSTEE  PROCESS   (see  Garnishee;  Garnishee's  Disclosure;  Gar- 
nishment AS  to  Liability). 

TRUST  FUND  — 


not  garnishable^  365-7. 


UNDERTAKING  (see  Bond). 


u. 


V. 


VACATION  OF  ATTACHIMENT  (see  Dissolution  of  Attachment). 

VARIANCE  — 

between  petition  and  affidavit,  79. 

VENDOR  — 

when  liable  to  attachment  of  property  nominally  sold,  256, 

VENDEE  (see  Purchaser). 

VOLUNTARY  BOND  (see  Common-law  Bond). 

w. 

WAGES  — 

when  exempt,  741,  742. 

when  not  susceptible  to  garnishment  beyond  the  debtor's  state,  744, 

745. 
when  the  attachment  has  been  dismissed,  833. 


T54:  INDEX. 

The  references  are  to  sections. 

WAIVER  — 

of  summons  or  notice  by  general  appearance  of  defendant,  665. 

not  by  garnishee,  492. 

by  bonding,  751. 
as  to  effect  of  dissolution  bond,  712-716. 

execution  under  personal  judgment  while  appeal  from  dissolution 
of  attachment  is  pending,  906. 
of  exemption,  724. 

not  by  failing  to  plead,  where,  730. 

not  binding  when  general  renunciation  of  a  right,  734. 

by  absconding,  735. 

in  garnishment  by  not  claiming,  when,  737. 

WARRANTY  — 

not  of  title  in  attachment  sales,  868. 

stipulation,  876. 

of  sheriff  by  the  plaintiff,  969. 

WIFE  (see  Married  Woman). 

WRIT  — 

of  attachment,  see  Writ  of  Attachment. 

of  fieri  facias,  does  not  override  a  writ  of  attachment,  219. 

is  partly  superfluous  in  attachment  cases,  908-910. 

is  commonly  employed  for  attachment  sales,  911. 

cannot  retroact  so  as  to  give  jurisdiction,  652. 
of  certiorari,  to  set  execution  aside  when  judgment  is  joint  against  the 
defendant  and  the  garnishee,  929. 

to  reverse  judgment  based  on  false  affidavit,  701. 

to  set  garnishment  order  aside,  738. 
of  error,  may  be  sued  out  by  garnishee,  when,  924. 

prevents  immediate  restoration,  918. 
of  garnishment,  is  issued  in  some  states,  483-85. 

is  generally  included  in  the  attachment  writ,  483. 

as  to  the  names  of  the  persons  to  be  garnished,  484. 

when  lost,  garnishment  falls,  485. 

how  constituted,  485. 

may  be  served  before  notice  to  defendant,  486. 
of  injunction,  to  prevent  garnishing  in  other  than  the  debtor's  state, 

743. 
of  mandamus,  not  employed  to  compel  trial  court  to  dissolve  attach- 
ment, 710. 
of  possession,  to  recover  attached  property  after  the  officer  has  been  di- 
vested, 594-5. 
of  replevin,  see  Replevin. 

of  scire  facias,  to  controvert  garnishee's  answer,  514. 
of  venditioni  exponas  when  attached  property  is  to  be  sold,  909. 

and  attachment  equal  fi.  fa.,  910. 

employed  in  proceedings  in  rem,  909. 


INDEX.  i  an 

The  references  are  to  sections 

WRIT  OF  ATTACHMENT  (see  Return  TO  Writ  of  Attachment)  — 
in  general,  204-236,  856-859. 
service  of  copy,  197. 
aided  by  summons,  how,  198. 

not  dependent  on  failure  to  find  the  defendant,  204,  206. 
may  be  granted  after  verdict  in  the  personal  action,  204. 
should  be  as  though  suit  in  rem  only,  207. 
issued  by  the  clerk  of  court,  208. 
issued  improvidently,  701. 

issuance  a  judicial  act  ministerially  performed,  208,  21*0,  217,  218. 
how  subscribed  in  New  York,  208,  note  1. 
how  issued  in  certain  states,  208,  note  1. 
presumably  issued  by  the  court,  209. 
issued  under  statutory  authorization,  211. 
issued  in  a  county  other  than  that  of  the  affidavit,  when,  311. 
should  contain  what,  212,  213. 
should  correspond  with  the  affidavit,  212,  215. 
with  essentials  omitted,  void,  213. 
must  state  time  to  return,  213. 
returned  to  what  court,  214. 
delivery  of,  to  the  officer,  216. 

by  hands  of  the  plaintiff,  216. 

not  on  a  dies  non,  217. 

may  be  in  court  vacation,  218. 
amendments  to,  220-226. 

not  made  after  levy,  220,  221. 

as  to  junior  attachers,  221. 

when  allowed  between  parties,  858,  859. 

after  service,  how  and  when,  222. 

not  retroactive,  when,  222. 
wrongly  directed,  225. 
alias,  when  issued,  226. 
as  to  property,  227-281. 
like  an  execution,  how,  227,  228. 
limited  to  liable  property,  229. 
as  to  national  banks,  230,  231. 
protects  the  officer,  when,  232. 

when  not,  232,  233. 
not  executed  against  mortgaged  property,  when,  235,  236. 
when  to  be  executed,  292-295. 

want  of,  or  defect  of,  is  ground  for  dissolving  attachment,  695. 
when  issued  improvidently,  701. 
when  void,  renders  sale  void,  856. 

cannot  be  legally  served  by  one  interested  as  a  party,  302. 
executed  by  sheriff,  he  may  call  the  plaintiff  in  warranty,  when,  969. 

WRONGFUL  ATTACHMENT  (see  Damages  Against  the  ATTAcmNO 
Creditor;  Damages  Against  the  Attaching  Officer). 


756  INDEX. 

The  references  are  to  sections. 

Y, 

YEAR  AND  A  DAY  — 

allowed  the  absent  debtor  to  come  and  defend  under  custom  of  Lon- 
don, 206,  881. 

of  delay  when  final  judgment  cannot  be  rendered.  622. 

allotted  absent  defendant  to  sue  for  dividends  allowed  creditors  by 
auditors,  883. 

having  expired  before  sale,  the  creditor  need  not  give  bond,  where,  884. 

not  having  expired,  sale  without  bond  held  void,  885. 

as  to  stay  order  and  time  of  delay  for  a  year  or  less,  885,  886. 


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